Delhi District Court
C.B.I. vs . 1.Sh. Lala Ram S/O Sh. Lakhmi Singh on 4 August, 2010
-1-
IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE (CBI-01), CENTRAL, DELHI.
CC No. 68/06 RC 1(A)/94
P.S. CBI/ACB/ND
C.B.I. Vs. 1.Sh. Lala Ram S/o Sh. Lakhmi Singh
R/o A-8/9, Mahipalpur Extn., Gurgaon
Road, New Delhi.
2. Smt. Suresh Lata W/o Sh. Lala Ram
R/o A-8/9, Mahipalpur Extn., Gurgaon
Road, New Delhi.
3. Sh. S.P. Grover S/o Late Sh. Jagdish
Chander R/o E-62, Pocket-'K', Seikh
Sarai, Phase-II, New Delhi.
4. Sh. Gulshan Rai S/o late Sh. Mool Raj
R/o S-5/101, Subhash Nagar, New Delhi.
5. Sh. Sobhraj Jai Singhani
A-31, Naraina Industrial Area, Phase-I,
New Delhi.
6. Sh. Ajay Kumar Bhardwaj
S/o Sh. Bhagwati Prasad Bhardwaj
R/o C-1/36, DDA Janta Flats,
Hastsal, New Delhi-59
7. Sh. Amarnath s/o Sh. Fagu
R/o H.No. 49, Block-a, Gali No. 2,
Parkash Vihar Karawal Nagar,
Delhi.
CBI Vs. Lala Ram
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8. Sh. R.B. Dubey S/o Sh. Paramtma Dubey
R/o E-45, Mukund Vihar, Karawal Nagar,
Delhi.
9. Sh. Jai Prakash S/o Sh. Chintamani
R/o H.No. 89, Sarojini Nagar, New Delhi.
10.Sh. Susheel Kumar S/o Surender
PalSingh
R/o B-202, Sadatpur Colony,
Karawal Nagar, Delhi.
11.Sh. Sarwan Kumar
S/o Sh. Dudh Nath Misra
R/o H.No. 149-A, New Township Colony,
Power House, Badarpur, New Delhi.
12.Sh. R.B. Chaubey
S/o Sh. Rajmal Chaubey
R/o 9/10, Ambedkar Basti, Mauzpur,
Delhi-53.
Date of Institution : 20.11.98
Judgment Reserved : 24.07.2010
Judgment Delivered : 02.08.2010
JUDGMENT
1. CBI filed the present charge sheet against 14 accused named therein U/s 120-B IPC r/w Section 420 IPC and Section 13(2) r/w 13(1)(d) P.C. Act and Section 25 and 27 of the I.T. Act.
CBI Vs. Lala Ram -3-
2. According to the charge sheet, on written complaint made by Sh. S.C. Duggal A.E.(Vig.) MTNL case was registered. According to the allegations, accused Lala Ram and his wife Suresh Lata were operating a racket of providing international telephone calls at cheaper rates to the customers. They were operating from their residential telephone number 6896650 which had been installed at A-8/9 Mahipalpur Extn., New Gurgaon Road, New Delhi. This was being done in collusion with Sh. S.P. Grover Assistant Engineer, Coaxial Maintenance, MTNL. Large number of MTNL employees had been colluding with accused Lala Ram to provide international calls after office hours or during holidays. Two non-metered circuits had been obtained by way of tampering through unknown employees. International calls worth large sums were connected each night and thereby causing loss to the Government/MTNL.
3. In the charge sheet it was further claimed that official CBI Vs. Lala Ram -4- residential line of accused Lala Ram (Phone no. 6896650) was kept under observation. It was observed that good number of calls were made in the evening or early morning. The incoming calls were received from selected customers and outgoing calls were made from Coaxial Maintenance Junction, Kidwai Bhawan.
4. At the time of raid, accused Lala Ram was found attending the telephone. He had a note book in his hand in which he had noted down some telephone numbers. Search of his house revealed large number of loose paper slips containing local and international numbers. Some note books and diaries were also recovered. Some incriminating documents were recovered during house search of accused R.D. Gangwar and accused S.P. Grover. Paper slips were recovered from the possession of Sh. R.B. Dubey who was on night duty at Coaxial Maintenance Junction at 7th Floor, Kidwai Bhawan, New Delhi. The numbers noted down by Lala Ram in the note CBI Vs. Lala Ram -5- book tallied with the numbers mentioned in the paper slip recovered from the possession of Mr. R.B. Dubey at Coaxial Maintenance Junction, Kidwai Bhawan.
5. The charge sheet further mentions that during investigation it was revealed that accused Lala Ram, R.D. Gangwar, Gulshan Rai, S.P. Grover and Ajay Kumar used to contact private persons and offered providing of STD/ISD facilities at cheaper rates i.e. Rs. 100-150/- per call without consideration of time. Accused used to give their residential telephone numbers to those outsiders. The said outsiders used to ring up the accused at their residential number. Remaining accused used to communicate local telephone numbers to the parties who wanted to make calls. Accused Lala Ram and his wife used to note down the numbers in the note book. They used to communicate those numbers to the regular majdoor who remained on duty at Coaxial Maintenance Junction, Kidwai Bhawan, New Delhi. They used to CBI Vs. Lala Ram -6- mature the calls.
6. During the raid at Coaxial Maintenance Junction, 7th Floor, Kidwai Bhawan, New Delhi, one multi frequency signal tester and one local telephone instrument on four wire bay and two wire bay were found. They were unauthorizedly kept over there. Accused R.B.Dubey, Regular Majdoor who was on night duty informed the raiding party that he and other regular majdoor namely R.B. Chaubey, Jai Prakash etc.. who were on the night duty used to note down the telephone numbers which were communicated by accused Lala Ram and his wife Suresh Lata. Thereafter, local telephone numbers were dialed from the local telephone instrument over there and the parties were contacted to obtain their international numbers. After obtaining international numbers, it was written in front of the local number of the party, the party was kept online by holding the local call. In the meanwhile international number was dialed with multi CBI Vs. Lala Ram -7- frequency signal tester which had been installed unauthorizedly. After the foreign party came online, it was connected to the local party and the call matured. The raiding party also checked the varacity of the disclosure made by the accused R.B. Dubey made calls which duly matured.
7. Further during investigation, a local telephone was traced. It was found that local telephone had been installed at the line of telephone number 3316826 unauthorizedly. It was being used to make local calls to private parties. From 15.03.93 to 15.01.94, in all 35890 calls had matured on this telephone. Investigation also revealed that accused R.B. Dubey , R.B. Chaubey, Jai Parkash, Sarwan Kumar, Sushil Kumar, and Amarnath used to hand over the chits of local and international numbers which had matured during their shift to accused Lala Ram and his wife who along with accused Gulshan Rai, R.D. Gangwar, Ajay Kumar used to collect the CBI Vs. Lala Ram -8- charges towards unauthorized STD/ISD calls from the private parties. The money so collected was distributed among all the accused. A diary had been recovered from the house search of accused Lala Ram to this effect.
8. Investigation further revealed that accused R.D. Gangwar was posted in Coaxial Maintenance Junction 3rd Floor, Kidwai Bhawan, New Delhi where SPC tax was installed and was doing the job of opening/closing of STD numbers. Accused R.D. Gangwar diverted STD/ISD channel from Coaxial Maintenance 3rd Floor, Kidwai Bhawan to Coaxial Maintenance 7th Floor where SPC tax had been closed. This circuit had been diverted unauthorizedly for making STD/ISD calls during night time. Accused Lala Ram used to give Rs. 250/- per day or two international calls without consideration to accused R.D. Gangwar for diverting STD/ISD circuit to 7th floor, Kidwai Bhawan.
CBI Vs. Lala Ram -9-
9. It also revealed that accused S.P. Grover had been working as incharge Coaxial Maintenance Junction at 7th Floor. He was aware that SPC tax and local number 3316826 had been closed but the wiring still existed. From the documents recovered from the house search of accused Lala Ram, it was revealed that some of the calls had been made from A.E.'s account which indicated that accused S.P. Grover (A.E.) was also involved in the racket. It was also revealed that multi frequency signal tester and local number 3316826 were installed unauthorizedly on the 7th floor, Kidwai Bhawan where accused S.P. Grover used to sit. Accused Lala Ram, R.B. Dubey, R.B. Chaubey, Jai Prakash, Sarwan Kumar, Sushil Kumar and Amarnath had worked under him when this racket was being run. Accused Lala Ram was not posted in Kidwai Bhawan. Accused S.P. Grover called him for temporary duty in March. 1993.
10. It was revealed further that accused R.B. Dubey, CBI Vs. Lala Ram -10- regular majdoor was on duty at Coaxial Maintenance Junction 7th Floor, Kidwai Bhawan, New Delhi. During the intervening night of 4/5.01.94, he was found in possession of paper slips containing names and telephone numbers of the local parties and telephone numbers of international calls. He had disclosed that local numbers had been conveyed to him on the local telephone installed in the office by Lala Ram and his wife from their residence. It further got revealed that regular majdoor on night duty used to handover paper slips after maturing the unauthorized STD/ISD calls to Lala Ram who used to collect charges from the concerned parties. Regular Majdoor used to be paid Rs. 10/- per call.
11. It was further revealed that accused Gulshan Kumar was also involved in the racket. At the time house of accused Lala Ram was being searched, accused Gulshan Kumar telephoned at residential telephone no. 6896650 which had been installed at house of accused Lala Ram.
CBI Vs. Lala Ram -11- He gave some local numbers for ISD calls. Two pocket diaries which were written in the handwriting of accused Gulshan Kumar were recovered from the residence of accused Lala Ram. They contained telephone numbers of the local parties.
12. Accused Ajay Kumar was fitter in DTC, Hari Nagar Depot. He was known to accused Lala Ram and was involved in the racket. He also used to contact private parties for unauthorized STD/ISD calls and used to collect money from them. The diaries bearing name of accused Ajay Kumar and containing telephone numbers of the parties had been recovered from the residence of accused Lala Ram. They contained writings of accused Ajay Kumar.
13. Accused Lala Ram in conspiracy with other accused had been running the racket from 1990 or so. He had led CBI team to the accused Sobraj Jai Singhani and Sunil CBI Vs. Lala Ram -12- and had collected charges of unauthorized calls in presence of witnesses.
14. Approximately 1400 STD/ISD calls were made in a month and at the rate of Rs. 100/- per call, accused earned Rs. 1,40,000/- per month or Rs.16,80,000/- per year and Rs. 67,20,000/- in the period from 1990 to 1993. Prosecution prayed for summoning of the accused and their trial.
15. After the accused were summoned and copies were supplied, my Ld. Predecessor heard arguments and framed four set of charges against the accused persons which are as under:
Charge no. 1:
I, Dinesh Dayal, Special Judge, Delhi hereby charge you Lala Ram (A1), SP Grover (A2), RB Dubey (A4), RB Chaubey (A5), Jai Parkash (A6), Gulshan Rai (A7), Sarwan Kumar (A8), SUsheel CBI Vs. Lala Ram -13- Kumar (A9), Amar Nath (A10), Ajay Kumar Bhardwaj (A11), Smt. Suresh Lata (A12) and Sobraj Jai Singhani (A13) as follows:
That during the period 1990 to 1994 at Delhi, you all above named accused entered into a criminal conspiracy with RD Gangwar (A3) (since expired) and Sunil (A14) ( since Proclaimed Offender), with the object to cheat MTNL, Delhi and in furtherance of said criminal conspiracy,you all with the help of RD Gangwar (A3) illegally installed one multi frequency signal tester at 7th floor, Kidwai Bhawan, New Delhi from 3rd floor, kidwai Bhawan, New Delhi to divert STD/ISD Channel to telephone no. 3316826 within the knowledge of you SP Grover (A2), which was closed and you Lala Ram (A1), SP Grover (A2), RD Gangwar (A3) (since expired), Gulshan Rai (A7) and Ajay Kumar (A11) used to contact private persons particularly the exporters to provide them STD/ISD CBI Vs. Lala Ram -14- calls at cheaper rates used to contact you Lala Ram (A1) or you Smt. Suresh Lata (A12), w/o Lala Ram at your residence no. A-8/9 Mahipal Pur Extension, New Gurgaon Road, Delhi for providing the aforesaid facility, you Lala Ram or you Smt. Suresh Lata used to hand over the written slips mentioning local telephone numbers as well as international telephone numbers to RB Dubey (A4), RB Chaubey (A5), Jai Parkash (A6), Gulshan Rai (A7), Sarwan Kumar (A8), Susheel Kumar (A9), Amar Nath (A10), all regular majdoors for maturing illegal STD/ISD calls to private persons and you the above named regular majdoors used to provide illegally STD/ISD facility to private persons, further you Lala Ram (A1) with the assistance of Gulshan Rai (A7), RD Gangwar (A3) and Ajay Kumar (A.11) used to collect money for such calls from them and which was distributed amongst you all. You Sobraj Jai Singhani (A13) and Sunil CBI Vs. Lala Ram -15- (A14)(PO) used to make ISD calls, with the assistance of you Lala Ram etc. and paid Rs. 300/- and Rs. 220/-
respectively to you Lala Ram in the presence of independent witnesses for ISD calls illegally provided by you Lala Ram etc. During raid conducted by CBI on 05.01.94 you Lala Ram were found in possession of paper slips and note book/diaries containing local telephone numbers and international telephone numbers in the name of private parties and you RB Dubey (A4) were also found a paper slip containing same telephone number, which were found in note book/diaries of you Lala Ram and thereby all you have committed an offence punishable U/s. 120-B IPC read with 420 IPC and 13(2) read with 13(1)(d) of the PC Act, 1988 and Sections 25 and 27 of the Indian Telegraph Act and within my cognizance... Charge no. 2:
I, Dinesh Dayal, Special Judge hereby charge you CBI Vs. Lala Ram -16- all Lala Ram (A1), S.P. Grover (A2), R.B. Dubey (A4),R.B. Chaubey (A-5), Jai Prakash (A6), Gulshan Rai (A7), Sarwan Kumar (A8), Sushil Kumar (A9), Amarnath (A10), Ajay Kumar Bhardwaj (A11), Smt. Suresh Lata (A12), Shobh Raj Singhani (A13) that you all during the aforesaid period and place in pursuance of aforesaid criminal conspiracy, cheated MTNL, Delhi as detailed in Charge No. 1 and obtained unauthorizedly unmetered STD/ISD calls fraudulently or dishonestly to the tune of Rs.
67,20,000/- and thereby you committed an offence u/s 420 IPC and within my cognizance.
Charge no. 3:
I, Dinesh Dayal, Special Judge hereby charge you all Lala Ram (A1), S.P. Grover (A2), R.B. Dubey (A4),R.B. Chaubey (A-5), Jai Prakash (A6), Gulshan Rai (A7), Sarwan Kumar (A8), Sushil Kumar (A9), Amarnath (A10) that you all intentionally CBI Vs. Lala Ram -17- damaged/tampered the STD/ISD circuit/channel at 3rd floor, Kidwai Bhawan, New Delhi and illegally diverted it to 7th floor, Kidwai Bhawan, New Delhi and used the same for making illegal/unmetered STD/ISD calls through a multi frequency signal tester and thereby you committed an offence u/s 25/27 of Indian Telegraph Act.
Charge no. 4:
I, Dinesh Dayal, Special Judge hereby charge you all Lala Ram (A1), S.P. Grover (A2), R.B. Dubey (A4),R.B. Chaubey (A-5), Jai Prakash (A6), Gulshan Rai (A7), Sarwan Kumar (A8), Sushil Kumar (A9), Amarnath (A10), Ajay Kumar Bhardwaj (A11) that you all while working as Public Servant during the period 1990 to 1994 at Delhi, dishonestly provide unauthorized STD/ISD calls to private persons through illegal means and in view thereof you collected money from them, as such you obtained CBI Vs. Lala Ram -18- pecuniary advantage for yourself and by abusing your official position by corrupt illegal means and thereby you committed an offence u/s 13 (2) r/w 13(1)(d) of P.C. Act, 1988.
16. After the charges were framed and read over to the accused , all of them pleaded not guilty and claimed trial. By the time charges were framed, accused R.D. Gangwar had expired and accused Sunil had been declared P.O.
17. CBI in support of its case examined 40 witnesses while accused Lala Ram examined one defence witness.
18. The first witness to be examined by the CBI was Sh. Man Singh. Mr. Man Singh testified that on 07.01.94, he was posted as Inspector in NDMC Vigilance Department. On directions of Dy. Director Vigilance, he went to office of CBI at CGO Complex. There, CBI Officials informed him about the complaint against Lala Ram. Lala Ram CBI Vs. Lala Ram -19- was stated to be JE in MTNL and he used to tamper meters of STD Booth and used to permit people to talk on telephone out of station. Man Singh further testified that he was told to tell the clients that Lala Ram had been transferred and he (PW Man Singh) had to pose as JE in MTNL and collect money from STD Booth owners which was earlier being collected by Lala Ram. In the CBI's office, Lala Ram was present along with 3/4 officers of CBI. Thereafter he along with the accused Lala Ram and CBI Team went to Naraina Industrial Area. Accused Lala Ram took them to a garment factory. He told the owner of the factory that he had been transferred and in his place he (PW Man Singh) had been posted. Accused Lala Ram told factory owner to pay previous balance of Rs. 300/- to him and in future payments should be made to the prosecution witness Man Singh. Factory owner paid Rs.300/- towards telephone calls. At that time other members of CBI team entered the factory. PW Man Singh correctly identified accused Lala Ram and CBI Vs. Lala Ram -20- also accused Sobhraj Singhani who was the factory owner who made payment of RS. 300/- to Lala Ram. Recovery memo Ex. PW1/A was prepared.
19. PW Man Singh further deposed that accused Lala Ram took the CBI party and him to Kirti Nagar where they met a person who was stated to be son of a Magistrate. Accused Lala Ram repeated the story and told him that he had been transferred and in his place he ( PW Man Singh ) had been posted. Lala Ram asked for balance payment and Rs. 200/- approximately was paid to him. Recovery memo Ex. PW1/B was prepared. According to the witness, accused Lala Ram took the CBI party to other places but no raid could be conducted as concerned persons were not available. Ex. R-1 to R7 were the currency notes which have been handed over to accused Lala Ram by accused Sobh Raj Jaisinghani and the son of retired Magistrate. Upon being cross examined, witness claimed that he remained with the CBI Vs. Lala Ram -21- Vigilance Department of NDMC from 1992 to 1997. He had been cited as a witness in four cases. He further submitted that he had signed the memos after going through the contents. He denied the suggestion that money had not been paid to accused Lala Ram in his presence and that he was deposing under compulsion.
20. The next witness to be examined by the CBI was Sh. Ram Gopal, SDO, MTNL. He testified that in the year 1995, he was posted as JTO, Junction Coaxial 7th floor, Kidwai Bhawan. Seizure memo Ex. PW2/A contained his signatures. He handed over duty chart for the period 05.07.87 to August 1990, 28.08.90 to 07.09.91 and attendance registers for the period January 1989 to November 1990, May 1991 to March 1992, March 1992 to December 1992, February 1993 to April 1994 which were Ex. PW2/P-1 to Ex. PW2/P-9. In the year 1995 Sushil Kumar, Amarnath and Sarvan Kumar were summoned to CBI office. They gave their handwriting CBI Vs. Lala Ram -22- samples. He (PW2 Ram Gopal) attested them. The said specimen handwritings were Ex. PW2/B-1 to PW2/B-12. They were of accused Amarnath. Specimen handwriting of accused Sarvan Kumar was Ex. PW2/C-1 to C-7 and specimen handwriting of accused Sushil Kumar was Ex. PWD-1 to D7. Upon being cross examined, he claimed that he was posted in the office at the time of raids.
21. The next witness to be examined by CBI was Mr. R.K. Ochani. Mr. Ochani testified that in 1995 he was working as SDO Telex at C-28, Naraina Industrial Area, Phase-I. Accused Gulshan Kumar was posted as JTO with him. He had handed over leave applications and other documents written by Gulshan Kumar in discharge of his official duty to CBI Inspector vide memo Ex. PW3/A. The documents which had been written by the accused Gulshan Kumar were Ex. PW3/B-1 to PW3/B-
16. CBI Vs. Lala Ram -23-
22. This witness was declared hostile and was cross examined by Ld. P.P wherein he admitted that his statement Ex. PW3/C was recorded by Inspector Azad Singh on 06.06.95, but he denied the suggestion that Inspt. Azad Singh had shown him diaries mark PW3/A and Mark PW3/B. He denied the suggestion that he had been won over by the accused Upon being cross examined by advocate for the accused Gulshan Rai, he admitted that letter Ex. PW3/A contained his signatures. He further admitted that Ex. PW3/B-10 and PW3/B-11 were in the handwritings of Gulshan Rai but they did not contain his signatures.
23. The fourth witness to be examined by the CBI was Sh. N.K. Maithani, Asstt. Manager, United India Insurance Co. Ltd. He testified that accused Grover and Dubey gave their specimen handwriting to CBI Inspector in his presence. The said specimen were Ex. PW4/A-1 to A-5. He claimed that all five sheets contained his CBI Vs. Lala Ram -24- signatures and also handwriting and signatures of R.B. Dubey. Upon being cross examined he claimed that specimen signatures and handwriting of the accused were taken in his presence in February, 1995.
24. The next witness to be examined by CBI was J.C. Sharma PW5. Mr. Sharma testified that in the year 1995, he was working as Asstt. Grade-III in FCI, Head Quarters, Barakhamba Road. In his presence accused Lala Ram and his wife Suresh Lata and accused Gulshan Kumar gave specimen writing and signatures to CBI Officers He signed as a witness on those specimen handwritings and signatures sheets. The said sheets pertaining to accused Lala Ram were Ex. PW5/A1 to PW5/A78. The sheets containing handwriting and signatures of Suresh Lata were Ex. PW5/B1 to PW5/B19. The sheets containing handwriting and signatures of Gulshan Rai were Ex. PW5/C1 to PW5/C18 and PW5/C19 to PW5/C34. The sheets bearing signatures of CBI Vs. Lala Ram -25- S.P. Grover were Ex. PW5/D1 to D8.
25. CBI thereafter examined Sh. R.S. Aggarwal as PW6. Mr. Aggarwal testified that in 1994 he was working as Asstt. Engineer in the office of G.M. (Transmission) Kidwai Bhawan, Janpath, New Delhi. He was also given additional charge of Asstt. Engineer ( Coaxial Maintenance MTNL), Kidwai Bhawan after this incident. He had handed over three attendance registers of JTOs, Regular Majdoors and duty charts to CBI Officers from the record of Junction Coaxial Maintenance vide seizure memo Ex. PW6/A. Attendance registers were Ex. PW2/P4, PW2/6 and PW2/P8. The duty charts were Ex. PW6/A1 to PW6/A4. In his cross-examination he submitted that the record pertained to coaxial maintenance unit, Kidwai Bhawan.
26. CBI thereafter examined Suraj Prakash as PW7. He claimed that on 20.04.95 he had gone to CBI Office in CBI Vs. Lala Ram -26- connection with some official work. They requested him to witness specimen handwriting and signatures of some persons. Accused Lala Ram, Suresh Lata and Gulshan Rai gave specimen handwriting and signatures on some sheets. He signed them as a witness. The documents so prepared were Ex. PW5/A-1 to PW5/A-19, PW5/B-1 to PW5/B-8 and PW5/C-1 to PW5/C-18.
27. Specimen handwritings of Suresh Lata were Ex.PW5/B-1 to PW5/B-8. Handwriting and signatures of Gulshan Kumar JTO were PW5/C-1 to PW5/C-18.
28. Thereafter Mr. B.K. jain entered the witness box as PW8. He testified that in 1994, he was working as JTO Vigilance in the Office of Director Vigilance MTNL Khurshid Lal Bhawan. On 05.01.94, he along with CBI team and independent witnesses went to 7th floor, Coaxial Maintenance Junction Kidwai BHawan at about 6.45 am. They found accused R.B. Dubey, regular CBI Vs. Lala Ram -27- majdoor on duty. A slip was recovered from R.B. Dubey which was mark PW8/A. As a result of search of the premises, one telephone instrument two wire bay and one multi frequency signal tester were recovered by the CBI. A test call was done by accused R.B. Dubey and the same was heard by independent witness Mr. Aggarwal. The call had matured successfully. Printout of autonomous message was collected by him from JTO Mr. V.K. Kapoor, SPC Local 331/332 . He handed over the message to Inspector Tokas. Search memo of Coaxial Junction Ex. PW8/B was prepared. Another search-cum- seizure memo was prepared which was Ex. PW8/C. Upon being cross examined, witness claimed that the junction did not contain any independent telephone lines except telephones which were meant for the officials. Further he claimed that as he had been working in a vigilance cell of MTNL he had appeared in large number of cases as a witness. He further claimed that regular majdoor could be asked to do technical jobs.
CBI Vs. Lala Ram -28-
29. CBI thereafter examined Sh. Jaipal Singh D.E. MTNL Chanakyapuri telephone exchange. The witness testified that in 1998 he was posted as Sub Divisional Engineer Vasant Kunj Telephone exchange. On 10.11.98, he issued two documents Ex. PW9/A and PW9/B. It was regarding opening particulars of telephone no. 6896650 and its fortnight meter reading. According to their records telephone no. 6896650 was opened in lieu of old telephone number 3294650. It was without STD. It was at the residence of Lala Ram JTO at A-89, Mahipalpur New Delhi.
30. Telephone number 6896650 was disconnected under safe custody vide OB No. 836891751. Upon being cross examined, the witness claimed that he did not know who had made payments for the calls mentioned in the fortnightly meter reading Ex. PW9/B.
31. Mr. Ved Prakash Gupta Divisional Engineer was CBI Vs. Lala Ram -29- examined as PW10. Mr. Gupta testified that on 04.07.95, he was posted as SDE Old Coaxial Maintenance at Kidwai Bhawan. He had produced original attendance register of accused R.D. Gangwar and Mr. Ashok Kumar from January 1991 to December 1993 and January, 1994 to December, 1994. The said registers were Ex.PW10/A and PW10/B. He claimed that he had produced admitted writings of accused R.D. Gangwar which were Ex. PW10/C1 to PW10/C6. They were in English language. He had also produced admitted handwriting in Hindi language. The same was Ex. PW10/D1 to PW10/D2. The documents had been delivered to Inspt. Azad Singh vide memo Ex. PW10/E. The witness was later on recalled u/s. 311 Cr.P.C. He claimed that a circuit of Guwahati was connected to SPC (Tax) Exchange. From these circuits local, STD and international calls could be made. There were unlimited pairs of wires connecting UDF and diversion could be done by connecting wires.
CBI Vs. Lala Ram -30-
32. CBI thereafter examined Sh. Rajiv Lamba foreman DTC. He testified that on 08.08.95, he was posted as foreman at Hari Nagar Depot-II. As per directions of his depot manager, he went to CBI Office along with Jitender Singh foreman. They met Inspt. Azad Singh. Accused Ajay Bhardwaj gave his handwriting samples. The said handwriting samples were Ex. PW11/A-1 to Ex. PW11/A-19. Upon being cross examined, he denied the suggestion that samples had not been taken in his presence.
33. The next witness to be examined was Sh. Amarnath Jha. Mr. Jha testified that on 09.11.98, he was posted as SD (FRS), Rajouri Garden Telephone Exchange. He had produced some documents to Inspt. Azad Singh who seized them vide memo Ex. PW12/A. He had produced two original letters showing status of telephone numbers mentioned in Ex. PW12/A. Ex. PW12/A1 was history of telephone number 5414349 which was opened in the CBI Vs. Lala Ram -31- name of Mr. Shiv Nand Rawal on 19.08.85. The document was prepared by Level Operator. It was sent to Senior Record Supervisor, Rajouri Garden Telephone Exchange.
34. Ex. PW12/A2 was history of telephone number 5437303. It was opened in the name of Smt. Savitri Sethi on 10.09.86. It too was prepared by Level Operator and submitted by Senior Record Supervisor.
35. Mr. B.D. Sharma was prosecution witness no.13. He testified that on 12.11.98, he was posted as Supervisor Records in Tis Hazari Telephone exchange. He produced history of telephone number 2923354. The said phone was installed in the name of Mrs. Kanta Jaisinghani. It was opened on 21.08.86. On 02.12.89, STD facility on this telephone was barred. On 07.09.90, plan E-103 was provided with two extensions. On 23.01.95, the telephone was disconnected due to non payment. On 16.06.95, it CBI Vs. Lala Ram -32- was restored after receiving payments. On 02.12.97, the phone was again disconnected due to non payments. The relevant document was Ex. PW13/A which contained his signatures.
36. PW-14 examined by CBI was Mr. Bhagwan Bahirwani. Mr. Bahirwani testified that in 1994 he ran garment export business in the name and style of Globe Overseas Corporation at B-255, Naraina Indl. Area, Phase-I, New Delhi. The business was being run since 1986. In the factory 3-4 telephones had been installed. The witness claimed that he remembered number of two telephones which were 5451248 and 5457567. He claimed further that he was also running business at G-3, Skyline House, Nehru Place, New Delhi. He was running business of textile fabric. Two telephone number 64366903 and 6481417 were installed. Two telephone numbers which were 6853448 and 6851539 were installed at his residence at BD-11B Munirka, New Delhi CBI Vs. Lala Ram -33- in the year 1986.
37. In 1994 one man who gave his name as Mr. Mehta telephoned him at his factory and asked him whether he wanted to make overseas calls at cheaper rates. Some bargaining was done with Mr. Mehta. He settled to pay Rs. 125/- per call without time limit. He made 3-4 calls to Spain. It was practice of Mr. Mehta to call him and ask whether he wanted to make call overseas. Mr. Mehta called him at his factory premises at telephone no. 5451248 and 5457567. After he (PW Bhagwan Bahirwani) replied in affirmative, Mr. Mehta got connected the telephone at Spain. He used to talk to party at Spain for 15/20 mins. He thereafter paid agreed amount to Rs. 100/- and 125/- per call.
38. The witness pointed out at accused Gulshan Rai and told the Court that Gulshan Rai was known to him as Mr. Mehta. Upon being cross examined, witness stated that CBI Vs. Lala Ram -34- he was Proprietor of Globe Overseas Trading Corporation. He claimed further that he did not remember whether payments made to accused Gulshan Rai were reflected in their returns. He also denied the suggestion that CBI had threatened to frame him as an accused.
39. PW 15 was Sh. Ashok Kumar from BSNL. He deposed that in 1994 he was posted as workman in opening and closing department in Coaxial Room, Kidwai Nagar, BSNL. He was on duty with accused R.D. Gangwar JTO. His duty was opening and closing of circuits. One day accused R.D. Gangwar asked him if he had any friends who wanted to make calls abroad. He requested him (PW Ashok Kumar) to refer their names and telephone numbers. The witness claimed that he referred name of his friends Channi and Delhi telephone number 7244948. Thereafter accused Gangwar started making telephone calls to his friends including Channi CBI Vs. Lala Ram -35- The rate of call was fixed at Rs. 125/-. Accused Gangwar used to take Rs. 100/-, while Rs. 25/- were paid to him(witness). He further claimed that accused Gangwar asked him to keep away a ulling of the Gawahati Channel 1/11 in the night and keep it in its right place when he left his office in the morning. This continued for 3/4 months. Circuit of channel no. 1/11 was positioned at 215 in suit no. 5.
40. Witness lastly claimed that on 05.01.94 when CBI team took accused Gangwar in custody and reached Coaxial Room at 3rd floor at room no. 208, at that time he directed him to tie pair 261, 262 and 263 to Gawahati channel no. 1/11. When he did so, it could not be contacted as somebody might have kept away the required wires. Had the wires not been kept away, the Gawahti channel was okay. Accused Gangwar never told him that he had given any circuit regarding Gawahati line No. 1/11 at 7th Floor. Upon being cross examined, he CBI Vs. Lala Ram -36- claimed that there were 2/3 CBI Officials along with Inspt. Azad Singh on 05.01.94 when they came to 3rd floor, Kidwai Bhawan.
41. CBI thereafter examined Mr. Govindarajan as PW16. Mr. Govindarajan claimed that on instruction of his Zonal Manager, he joined CBI team on 05.01.94. He along with other witnesses and the team members went to Kidwai Bhawan and reached there at about 6.00 am. There the CBI team learnt from other team members who were searching house of accused Lala Ram that Lala Ram had given slip containing telephone numbers to accused R.B. Dubey. So team should proceed to the 7th floor where Coaxial Maintenance Junction was installed. The entire team then reached Coaxial Maintenance Junction where accused Dubey was found. His personal search was also conducted. The slip containing lot of telephone numbers both local and international, were found in his possession. Accused Dubey was questioned and he informed that CBI Vs. Lala Ram -37- accused Lala Ram used to tell telephone numbers regularly to the watchman on duty in the night. At their instance Dubey showed two instruments, one to make local calls and the other to make international calls. Dubey further informed them that initially he makes call at the local number on the instrument mentioned for local calls. After obtaining international numbers, he dials international number through 2nd instrument for making international call. Accused Dubey actually demonstrated by dialing a local number. From that local party, he obtained international number and dialed international number on the other instrument. The local party got connected to the international number. The other independent witness Mr. S.L. Aggarwal heard the entire telephonic conversation between the local party and the party in foreign country through parallel line. Dubey also informed them that instruments had been installed by accused Lala Ram and he (Dubey) and the other watchman were paid by accused Lala Ram @ Rs. 10/- per CBI Vs. Lala Ram -38- call for making those calls.
42. The proceedings were reduced to writing and memo Ex. PW8/B was prepared. Search cum production seizure memo Ex. PW8/C was also prepared. The slip which had been recovered from accused Dubey was Ex. PW16/A. Ex. P-1 and Ex. P-2 were two instruments which were found installed on the 7th floor of Kidwai Bhawan on 05.01.94. The witness also identified accused R.B. Dubey in the Court. Upon being cross examined, he admitted that he had no technical knowledge regarding functioning of the instruments. He further admitted that there was nobody else except accused R.B. Dubey on the 7th floor of Kidwai Bhaawn.
43. Thereafter Mr. D.D. Bansiwal was examined as PW17. He testified that on 12.11.98, he was posted as SDE (FRS) Kidwai Bhawan. He issued history sheet of telephone no. 3322049 and 3323899. The same was Ex.
CBI Vs. Lala Ram -39- PW17/A. The said telephone was opened on 18.12.87 in lieu of old telephone number 322049. The said telephone was barred for STD. It was installed for AE Coaxial Maintenance Junction room no. 453 Kidwai Bhawan. Telephone no. 332389 was also opened on 18.12.87 in lieu of old telephone number 343899. It also bear STD facility and was also installed in room no. 453 Kidwai Bhawan, New Delhi. On 03.11.89, telephone no. 3323899 was shifted from room no. 453 to room no. 505, Kidwai Bhawan.
44. The next witness to be examined was Vijay Kumar Kapoor SDE MTNL. He testified that on 05.01.94, he received instructions from his Vigilance Director to trace a call which was to be made by B.K. Jain JTO at his office switch no. 3312190. On 05.01.94, he (PW Vijay Kumar Kapoor) was incharge of switch room situated at 6th floor of the Kidwai Bhawan and the office was known as SPC Local Exchange. The telephone no. was put under CBI Vs. Lala Ram -40- observation. At about 7.00 am, a call was received whose originating number was printed on the typewriting machine. He testified further that he did not remember the originating number on the date of his testimony. He handed over the printout of the traced call to Inspt. Azad Singh. The printout was Ex. PW8/A. The witness after going through Ex. PW8/A stated that originating number was 3316826. Upon being cross examined, he claimed that printout as a whole was Ex. PW18/DA and it contained details of other telephone numbers also. He further admitted in the cross examination that any telephone connection could be put under malicious call observation after request was received. He further admitted that if telephone connection was disconnected for any reason the same could be revived only from the switch room after instructions of higher authorities.
45. CBI thereafter examined Mr. S.K. Goel JTO Vigilance. He testified that on 05.01.94, he was posted as CBI Vs. Lala Ram -41- JTO Vigilance. He joined CBI party at CGO Complex at about 5.30 am after being instructed by Senior Vigilance Officer. From CGO Complex they went to Kidwai Bhawan along with other memebers of the raiding party which included Mr. R.K. Pahwa, S.K. Vats and Azad Singh of CBI. Upon reaching 7th floor, coaxial maitainance switch room they all took positions around Coaxial Maintenance Room. In the room accused R.B. Dubey was met. He disclosed that he was night watchman. Inspt Azad Singh searched the coaxial maintenance room and enquired about the calls made within India and abroad from accused R.B. Dubey. He was personally searched which led to recovery of paper slips containing local and international numbers along with names. The said slip was Ex. PW16/A. Two telephone instruments were also found in the room. One was used for making local calls while the other one was for international calls. Inspt. Azad Singh made some test calls to the numbers mentioned in the recovered slip Ex.
CBI Vs. Lala Ram -42- PW16/A and call materialized. Accused Dubey informed them that accused Lala Ram used to provide the numbers telephonically. He used to contact the party on telephone and thereafter connect required international number and materialize the call. Accused Dubey further informed that he used to be paid by accused Lala Ram for connecting international calls. Accused Dubey further admitted that he used to connect international telephone numbers from the telephone in question at the instance of private parties. Ex. P-1 & P-2 were the instruments which were found to be installed at the Coaxial Maintenance Room, 7th floor, Kidwai Bhawan. On directions of CBI, accused R.B. Dubey made a local call on one of the telephone number which was found mentioned on the paper slips. From local party he obtained international number and dialled that number through instrument Ex. P-2. The call materialized and the conversation was heard by independent witness Mr. Aggarwal. He identified the accused R.B. Dubey during Court proceedings.
CBI Vs. Lala Ram -43-
46. The witness was cross examined by Ld. Counsel for the accused wherein he claimed that he had been posted in Vigilance Department from 1992 to 1996. He further admitted that he had stood witness in about 10 CBI cases. Accused R.B. Dubey was regular majdoor on night duty on 05.01.94. He further admitted that he did not remember name and address of the local party or party on the international line. Local call was made by instrument Ex. P-1 while international call was made by instrument Ex. P-2. He admitted that he did not possess technical knowledge about the transmission and so he could not tell as to how international call was transferred from instrument Ex. P-2 to instrument Ex. P-1.
47. Sh. V.P. Badola was the next witness to be examined by the CBI. Mr. Badola testified that he was posted as Dy. Manager in MMTC. On 05.01.94, he joined the search team which raided premises of accused Lala Ram at Mahipalpur. It was joint search by Vigilance officers of CBI Vs. Lala Ram -44- MTNL and CBI Officers. He had joined as independent witness. Accused Lala Ram was found in the premises. He was having a diary in his hand. Documents were seized and incoming telephone calls at his residence during that period were also attended. Search-cum- seizure memo Ex. PW20/A was prepared. Accused had disclosed that he was making unauthorized calls for private parties. Accused Gangwar was helping him in his activities. The raiding party was taken to residence of accused Gangwar. Note book Mark D-5, D-6, D-7, D-8, D-9, D-10, D-11, D-22, D-23, D-28, D-29, D-30 & D-64 contained his initials. The documents seized during search have been mentioned at Sl. No. 1 to 31 in memo Ex. PW20/A which also contained his initials.
48. During search at the house of accused R.D. Gangwar search cum seizure memo Ex. PW20/P was prepared and documents were seized.
CBI Vs. Lala Ram -45-
49. File mark D-12 contained bunch of papers, two slips contained his signatures. The same were Ex. PW20/T1 and PW20/T2. In the bunch of papers Mark D-13 one slip contained his signatures which was PW20/U.
50. Bunch of papers mark D-15 contained four slips bearing his signatures. The same were Ex. PW20/V1 to PW20/V4.
51. Bunch of slips mark D-31 contained two slips bearing his signatures. The same were Ex. PW20/W1 and PW20/W2.
52. Bunch of slips mark D-25 contained one slip bearing his signatures. The same was Ex. PW20/X.
53. Bunch of slips mark D-27 contained one slip bearing his signatures. The same was Ex. PW20/Y. CBI Vs. Lala Ram -46-
54. Bunch of slips mark D-32 contained one slip bearing his signatures. The same is Ex. PW20/Z.
55. Upon being cross examined, the witness claimed that he was present in the house of accused Lala Ram along with 7/8 members of the raiding party. He claimed further the person who had received the call had reduced its substance to writing. He denied the suggestion that no call was received at the residence of accused Lala Ram on 05.01.94.
56. CBI thereafter examined Sh. S.C. Duggal AGM Legal MTNL. Mr. Duggal testified that in the year 1993-1994, he was posted as AE (Vig.) Khurshid lal Bhawan. They received information that accused Lala Ram along with his Associates was indulging in activity of providing ISD/STD calls at cheaper rates. He (PW S.C. Duggal) then made a complaint to CBI which was Ex. PW21/A. CBI Vs. Lala Ram -47-
57. Prior to it he had verified the information by keeping telephone no. 6896650 under observation. The printout of the telephone was Ex. PW21/B. It too was handed over to CBI. On 05.01.94, he joined the raiding party which raided house of accused Lala Ram. They found the accused Lala Ram talking on telephone no. 6896650. His house was searched. During period of search a large number of calls were received on telephone no. 6896650 which were attended by members of raiding party. A memo detailing time of call, name of the caller, telephone number from which the call was made and the destination number were mentioned in it. Accused Lala Ram made disclosure statement Ex. PW20/C regarding grant of unauthorized facility of ISD and STD calls by accused R.D. Gangwar. He had also accompanied raiding party to house of R.D. Gangwar which too was searched and some articles were seized.
58. Upon being cross examined, the witness claimed that CBI Vs. Lala Ram -48- he had received information of the activities for the first time in January, 1994 and thereafter telephone number 6896650 was kept under observation. He denied the suggestion that complaint Ex. PW21/A was prepared in the office of CBI. He admitted that whenever a telephone is kept under observation they can come to know telephone number of the incoming instrument and telephone number of the instrument to which call is made. He admitted that he had no technical knowledge of the Coaxial system and SPC-TAX.
59. Thereafter Mr. R.S. Yadav was examined as PW22. Mr. Yadav testified that on 11.08.95, he was posted as Asstt. Incharge (Administration), DTC Hari Nagar Depot. He handed over leave application, application for appointment property declaration etc. which have been filed by accused Ajay Bhardwaj Asstt. Fitter. The same was seized vide memo Ex. PW22/A. The documents were Ex. PW22/B-1 to Ex. PW22/B-35.
CBI Vs. Lala Ram -49-
60. Mr. Atul Chawla was examined as PW23. He testified that in January 1994, he was posted as Divisional Engineer ( E-10B) Nehru Place, Telephone Exchange. He had seen computer printout of telephone no. 6896650 which had been kept under observation. He then testified about the Code words used in the printout which had been obtained.
61. Mr. Nathi Ram thereafter was examined as PW 24. He claimed that on 05.01.94, he was working as AE (Vig.) MTNL. On that day, he had gone to CBI Office on directions of his Senior Officials. Thereafter he accompanied them to 7th floor, Kidwai Bhawan, Coaxial Maintenance Junction. Accused R.B. Dubey was on night duty at the exchange. Some papers were recovered from his pocket. They contained telephone numbers. CBI Officers had talked to the person whose number was written on the paper. Accused R.B.Dubey informed them that the numbers were given by accused Lala Ram. PW CBI Vs. Lala Ram -50- Nathi Ram was cross examined by Ld.P.P. wherein he claimed that his statement was not recorded by CBI and then he corrected himself stating that his statement was recorded by CBI Officers.
62. He further admitted that one multi frequency signal tester for making international calls was found installed. It was in working condition. Accused R.B.Dubey had informed that local subscribers were contacted on the said instrument which was installed on two wire phase. After international telephone numbers were obtained, they were dialed on multi frequency signal tester. In this manner, local subscriber and foreign subscriber get connected. He further admitted that accused RB Dubey had informed that local subscriber contacted accused Lala Ram on his telephone no. 6896650 at his residence. They gave their number to accused Lala Ram or to his wife. Accused Lala Ram or his wife used to pass on those numbers to the person who was on night duty at Coaxial Maintenance CBI Vs. Lala Ram -51- Junction. The witness further admitted that accused R.B. Dubey dialed local number 5736696 which was found written on the paper slip found in possession of R.B.Dubey. R.B.Dubey then obtained international telephone number and dialed it on multi frequency signal tester. Thereafter local subscriber and foreign subscriber talked to each other. Their conversation was heard by S.M. Aggawal who was an independent witness on parallel line installed in the system. Upon being cross examined, he admitted that he had no technical knowledge about the transmission system installed in MTNL.
63. Mr. P.S. Saran was the next witness to enter the witness box as PW25. He testified that on 05.09.97, he was working as member services Telecom Commission New Delhi. He was competent to remove Asstt. Engineer and SDE of MTNL. After going through material put forth before him, he had granted sanction for prosecution CBI Vs. Lala Ram -52- of accused S.P. Grover and accused Gulshan Rai which were Ex.PW25/A & PW25/B. Upon being cross examined, he denied the suggestion that he had received only draft sanction order. Statement of some witnesses had also been received along with the file. He denied the suggestion that he had granted sanction without application of mind in a mechanical manner.
64. PW26 Ajit Singh deposed that on 19.08.98 he was working as AGM, Administration NTR, New Delhi. He as competent to remove regular majdoor and phone mechanic. After going through the file he had granted sanction to prosecute accused Amarnath, Sushil Kumar and Sarvan Kumar. The order was Ex. PW26/A. Upon being cross examined, he claimed that he was not aware of the case till the time he received file from MTNL. He further admitted that he might have received the draft sanction as it is normally made by their vigilance section. He too denied the suggestion that he had granted sanction CBI Vs. Lala Ram -53- without application of mind in a mechanical manner.
65. The next witness to be examined by the CBI was Dr. S. Basudeva. He testified that in 1998 he was posted as Sub-Divisional Engineer at Raigarh, Orissa. He was competent to grant sanction to remove R.B. Chaubey Regular Majdoor from his post. Sanction order Ex.PW27/A was passed by him after applying his mind. Upon being cross-examined he claimed that the entire record pertaining to the case had been received in their Circle office. He deniedthe suggestion that sanction had been granted without application of mind.
66. Mr. Mahender pal was then examined as PW28. He testified that he was working as JTO at Junction Coaxial Maintenance, 7th Floor Kidwai Bhawan. In August 1992 after availing medical leave he joined his duty at Kidwai Bhawan. On 05.01.94 at about 10 a.m, he came to know about presence of CBI team on the 7th floor of Kidwai CBI Vs. Lala Ram -54- Bhawan. At about 2 p.m. CBI officials asked him to trace out circuit of multi frequency tester installed at four wire bay in coaxial maintenance on the 7th floor. It was found that multi frequency tester was installed at K-13/7 on the Nehru Place site and the wiring of K-13/7 was going to tie 261/262 and 263 & old coaxial tie at 7th floor itself. Similarly, a dial tone was K-13/7 at two wire bay on Nehru Place site which was going to JTG Tie 21 &22 at 7th floor coaxial. He claimed then that he traced tie of telephone No.3316826 on the asking of CBI and found that it was going to tie number 21 & 22 JTG.
67. Channel K-13/7 pertained to Nehru Place site. He had prepared a diagram showing the circuit and the same was Ex.PW28/A. Subsequently my learned predecessor ordered the same to be de-exhibited
68. The witness claimed that he was called to test the circuit. He found multi frequency tester instrument CBI Vs. Lala Ram -55- installed on K-13/7 Channel of Nehru Place site and the wiring of corresponding channel at tie No.261, 262 & 263 of Old Coaxial Tag Block, at two wire bay, one instrument was in place.
69. The witness was cross-examined by Special PP as he was suppressing truth. Upon being cross-examined he admitted that the instrument Ex.P2 was technically the same instrument which he had tested on 05.01.94. It could or could not be the same instrument. On 05.01.94 the instrument was connected to four wire bay. He further admitted that by using two wire bay local calls could be made from coaxial junction room and the instrument Ex.P1 could be used only for hearing conversation when some local number is connected. On 05.01.94 at about 4 p.m. CBI officials dialed an international number in his presence. He did not get the international number. He had traced the circuit from the said four wire bay to tie 261, 262, 263 at MDF on the 7th CBI Vs. Lala Ram -56- floor coaxial. International calls could be matured from the tie if the circuit goes to the TAX side. No call had matured at that time meaning thereby that circuit had not completed. Upon being cross-examined further he claimed that if one dialed international number and he got international number then circuit is completed otherwise not. He admitted having made statement Ex.PW28/X. He further admitted that rough sketch in the statement Ex.PW28/X was prepared by him in his own handwriting.
70. The witness was further cross-examined wherein he claimed that he had made a statement to the effect that a client in Delhi was connected or ISD/STD line on four wire bay where multi frequency tester equipment was installed on the same channel i.e. K-13/7 Nehru Place.
71. Upon seeing attendance register E.PW16/D he identified the same as register of officers and staff posted at junction coaxial station between November 1993 to CBI Vs. Lala Ram -57- January 1994. The register contains columns of Lala Ram, R.B Dubey, R.B Chaubey and Jai Prakash. The duty chart prepared on weekly basis was Ex.PW16/E it also contained names of Lala Ram, R.B Dubey, R.B Chaubey and Jai Prakash and M.P. Aggarwal, Shreepal, Hakim Singh and Dharmender Kumar who were on duty on 05.01.94. He claimed that he had identified only one or two paper slips. He was not familiar with handwriting of R.B Dubey, R.B Chaubey, Jai Prakash, Sharvan Kumar, Sushil Kumar and Amarnath as they had not worked with him. The witness further claimed that he had been shown diary and one or two loose sheets but he could not identify the writings. He had not been shown any diary or notebook containing STD/ISD numbers. He denied the suggestion that he had identified writing of Lala Ram and S.P. Grover on the diary book and the loose sheets. However, he admitted that Lala Ram had worked with him earlier. He denied the suggestion that he was deposing falsely to help the accused.
CBI Vs. Lala Ram -58-
72. Upon being cross-examined he admitted that the coaxial room was on the 7th floor of Kidwai Bhawan. He admitted that accused S.P. Grover had a small cabin in the hall. He admitted further that S.P. Grover was looking after the general functioning coaxial maintenance junction of coaxial cable routes for fault for Nehru Place, Faridabad and Janpath, Ghaziabad. He admitted that S.P. Grover was working part time at coaxial junction at the 7th floor at Kidwai Bhawan and he used to visit the above places for checking/repairing the cables. He admitted further that maximum junction from Janpath to Faridabad were closed in 1992 except some lease lines which were still functioning. Lastly he admitted that in May/June 1993 trunk exchange was completely burnt in a heavy fire.
73. PW Mahender Pal was lateron recalled for re examination. He was shown Ex. P-2 and asked whether with the help of that instrument any call could be made.
CBI Vs. Lala Ram -59- He replied that according to his knowledge calls could be made but he was not very sure as he had not practically seen it. Though in his re examination he did not express any definite opinion but he made a definite claim that according to his knowledge calls could be made with the help of Ex. P-2.
74. CBI thereafter examined Sh. Raghuraj Singh. He testified that in 1994 he was posted as Chairman-cum Managing Director DTC. He was competent to remove accused Ajay Kr. Bhardwaj from service. After receiving report of the CBI along with copy of statement of witnesses and other documents, he applied his mind and granted sanction for prosecution of accused Ajay Kr. Bhardwaj. The same was Ex. PW 29/A. Upon being cross examined, he claimed that he had not received any draft sanction from CBI. He also denied the suggestion that sanction had been granted in a mechanical manner and without application of mind.
CBI Vs. Lala Ram -60-
75. CBI thereafter examined Mr. S.K. Vats as PW30. Mr. Vats deposed that on 05.01.94, he was posted as Asstt. Engineer MTNL at Khurshid Lal Bhawan. He had joined CBI Raiding Party. Raid was conducted at 7th floor of the Khurshid Lal Bhawan in the room of Coaxial maintenance Junction. Regular Majdoor RB Dubey was found on duty. One CBI Inspector who was part of the team received a phone call from CBI Officers who had gone to raid house of accused Lala Ram. He was informed that Lala Ram had given local as well as international telephone numbers to accused RB Dubey. Upon search, paper slips were recovered from RB Dubey. There were two instruments lying over there. While one instrument was for making local calls at two wire bay, the other one was multi frequency signal tester connected at four wire bay. Accused RB Dubey informed that the local numbers had been provided by accused Lala Ram. The local telephone instrument was used to contact the party and international number was then obtained. The CBI Vs. Lala Ram -61- international number then used to be dialed from the multi frequency signal tester and the local number was kept on hold. Upon contacting international number, the local subscriber was connected with the said international number. Further, RB Dubey informed that the system had been set up by accused Lala Ram and it was not legal. The witness further testified that RB Dubey told that telephone numbers were also conveyed by wife of Lala Ram JTO. A test call was got made by RB Dubey. He first called a local number using telephone instrument which was available at two wire bay. The number was kept on hold. The local party had provided international number. The same was dialed by accused RB Dubey. The local and the international parties were got connected. They talked to each other. The conversation was heard by independent witness Mr. Aggarwal. This indicated that the local telephone number and the multi frequency signal tester were in working order.
CBI Vs. Lala Ram -62-
76. The witness further deposed that there was another CBI team. One such team had confirmed that international circuit had been extended from old coaxial system on the 3rd floor of the building. The witness thereafter narrated the local and international number which had been got dialed by accused RB Dubey. Upon being cross examined by Ld. Counsel for the accused, witness stated that he was directed by the Seniors to be prepared to join investigation a day before. He further claimed that a fire had broken out in Kidwai Bhawan . He had never worked in transmission unit in MTNL but he knew broad Infrastructure of the system. He admitted further that he was not aware of the technique but international call had been made through multi frequency signal tester. Prior to the date of the raid, he had not seen such a system. He further claimed that he could not say as to what were the specific duties of a regular majdoor. Regular majdoor indeed do perform bit of technical work. He is not supposed to do any sophisticated work on his CBI Vs. Lala Ram -63- own.
77. Mr. Rai Singh Khatri was thereafter examined asPW31. Mr. Khatri testified that in 1994, he was posted as inspector in CBI Anti Corruption Branch. On 5th January, 1994 he along with inspector A.K. Mishra, R.S. Jaggi, two official of the vigilance department of the MTNL, MR. V.K. Badola independent witness and other officials of CBI went to house of accused Lala Ram at Mahipalpur Extn. They introduced themselves. Accused Lala Ram has found having a notebook in his hand in which h e was noting some telephone numbers. Inspt. A.K. Mishra along with th e independent witness were asked to handle official landline number 6896650 which had been installed at the residence of accused Lala Ram. He then informed the CBI team which had gone to telephone exchange Kidwai Bhawan regarding the numbers of the telephone mentioned on the last page of the notebook which accused Lala Ram was holding. He CBI Vs. Lala Ram -64- then examined the accused. Accused Lala Ram disclosed name of other co-accused and the modus operandi regarding making of unauthorized/unmetered calls. The disclosure made by the accused Lala Ram was Ex. PW20/C.
78. Inspt. A.K. Mishra in presence of Mr. Badola prepared list of the telephone calls received at 6896650. From 6.30 am on 05.01.94, 30 telephone calls had been received.
79. House of accused Lala Ram bearing no. A8/A9, Mahipalpur Extn. was searched and incriminating documents were seized vide memo Ex. Pw20/A. They had also seized 7 notebooks which were Ex. PW20/D, PW20/E, PW20/M, PW20/F, PW20/C, PW20/H and PW20/J. The diaries seized were Ex. PW20/K, PW20/L, PW20/N & PW20/O. CBI Vs. Lala Ram -65-
80. Upon being cross examined by Ld. Counsel for the accused, he claimed that after seeing memo Ex. PW20/B & page of item no. 12, the name of Mr. Gulshan had been mentioned therein. Mr. A.K. Mishra had written "not informed" against his name. It meant that the caller had not provided his telephone number and other particulars. Caller had not informed them the telephone number from which he was making the call. He further submitted that he had not verified from MTNL as to how many persons by the name of Gulshan or Gulshan Rai used to work over there on 05.01.94. He further claimed that he could not admit or deny that there were 15 Gulshan or Gulshan Rai working over there. He denied the suggestion that documents Ex. PW20/A & PW20/B had been manipulated. Further during course of cross examination, he admitted that he was not I.O. of the case and denied the suggestion that he had no authority to search house of accused Lala Ram. The door of the house was closed. It was opened when they rang the bell. Accused Lala Ram CBI Vs. Lala Ram -66- was sitting near the telephone instrument. They remained at the house till about 2.00 pm. During this period, they had gone to house of another Junior Engineer. He admitted that he had not made any telephone call to any other number mentioned in Ex. PW20/B to verify names of the callers.
81. Mr. Javed Siraj was a next witness to be examined by the prosecution. Mr. Siraj testified that in 1994, he was posted as an inspector in CBI-ACB. On 07.01.94, he was instructed by their SP to associate Inspt. Azad Singh in the investigation. Azad Singh introduced him to accused R.D. Gangwar. He further told him (PW Javed) that Gangwar had made a disclosure statement in which he had mentioned to collect money from Indu Sehgal of Lajpat Nagar towards telephone call charges. The witness claimed further that he along with the team members and accused Gangwar went to Sehgal Properties located at K- 2, Lajpat Nagar-II. The team members remained outside CBI Vs. Lala Ram -67- the shop and a witness Kiran Pal was asked to go inside the shop along with Gangwar to collect money from Indu Sehgal. After sometime, Kiran Pal came out along with Gangwar and told that Indu Sehgal was not available and her husband asked them to come another time to collect the money. The witness claimed that after hearing this, he along with other team members went inside the shop and contacted husband of Indu Sehgal. Mr. Sehgal told him that he knew Gangwar as Sharmaji of telephone department who used to come there to collect money for the calls made. Premises of Sehgal properties were searched and search memo Ex PW32/A was prepared.
82. The next witness to be examined by the CBI was Sh. Arun Aggarwal. He testified that he used to run a private press by the name of Saraswati Offset Printer Pvt. Ltd. In the year 1994, he had MTNL landline connection whose number he did not recollect. From 1989 to 1995 his son Amit used to study in America. He used to have CBI Vs. Lala Ram -68- telephonic conversation with him. CBI officials had made enquiries from him. He had informed them that he did not know accused Lala Ram. The witness was cross examined by Ld. P.P. wherein he denied the suggestion that he used to have conversation with his son through accused Lala Ram. He further denied that he had agreed with accused Lala Ram to pay him Rs. 100/-. He further denied having told CBI that on 05.01.94 somebody had telephoned at his number 5736696 on behalf of accused Lala Ram and asked whether he(witness) wanted to make call to USA and thereafter he had given telephone no. of his son Amit. However, he did admit providing telephone no. of Amit to CBI Officials. He further admitted that he and his family members used to talk to Amit for about 5 to 10 minutes but he volunteered that he used to talk to Amit after booking the call through telephone exchange.
83. Thereafter Inspector Azad Singh was examined as CBI Vs. Lala Ram -69- PW-34. Azad Singh testified that in the year 1992, he went on deputation to CBI. On 04.01.94, FIR in the present case was registered with CBI. The same was Ex. PW34/A and had contained signatures of Mr. R.K. Dutta S.P. It was marked to him for investigation. During investigation search was conducted at the residence of accused Lala Ram at Mahipalpur Extn. It was also conducted at Coaxial Maintenance Junction 7th floor Kidwai Bhawan in presence of independent witnesses and MTNL staff. In the joint surprise checking accused RB Dubey (rm) was found on duty. At that time, a telephone call was received from Inspector Rai Singh Khatri from the residence of accused Lala Ram. He informed that telephone numbers were being noted by accused Lala Ram and they were communicated to accused RB Dubey at Kidwai Bhawan Coaxial Maintenance Junction. A Paper slip was recovered from the possession of accused RB Dubey containing local and international numbers. Dubey further told them that local numbers were CBI Vs. Lala Ram -70- communicated to him by accused Lala Ram and his wife Suresh Lata. Thereafter subscriber of the local number used to be contacted by him( Dubey) and ISD number was obtained. The local subscriber was kept on hold and he (Dubey) used to dial ISD no. from Multi Frequency Signal Tester. When foreign customer came on line, he connected him with the local subscriber. A test call was made in presence of independent witnesses and MTNL staff. RB Dubey dialed the local number from the paper slip Ex. Pw16/A which was with him. After dialing the local number, he obtained ISD number and noted the same in front of the local number. Thereafter he dialed ISD number through Multi Frequency Signal Tester and connected local and foreign customer. The call matured and was heard by the independent witness S.N. Aggarwal on parallel line.
84. Accused Dubey was asked about telephone number which had been installed at Coaxial Maintenance CBI Vs. Lala Ram -71- Junction which he used to connect local telephone numbers,but he was not aware about of the numbers which he was using. The MTNL staff traced technically vide memo dated 05.01.99 which was Ex. PW8/C. It was found that telephone line of telephone number 3316826 was being used at Coaxial Maintenance Junction by accused RB Dubey for contacting local parties. Ex. PW8/C contained his signatures. Dubey further informed that local number was installed at two wire bay and ISD no. is dialed through four wire bay system. The local telephone and multi frequency tester were taken in possession. Duty register and attendance register were also seized. During investigation accused Lala Ram, R.B. Chaubey, S.P. Grover, R.B. Dubey, R.D. Gangwar and Jai Prakash were interrogated and arrested. Their personal search were also conducted vide personal search memos. Disclosure statement of accused were recorded.
85. Accused Lala Ram disclosed that he had been posted CBI Vs. Lala Ram -72- in Coaxial Maintenance Junction for a long time and the facility of SPC Tax, ISD call and local call were available , but subsequently they were closed. He further disclosed that he had been running the racket of providing STD/ISD calls unauthorizedly at cheaper rates to private selected person from his office. The work stopped because of closure of SPC Tax from his office. He further disclosed that he contacted accused R.D. Gangwar JTO on the 3rd floor of the Kidwai Bhawan where SPC Tax facility was available. Accused R.D. Gangwar JTO Coaxial Maintenance Junction, 3rd floor, Kidwai Bhawan agreed to divert STD/ISD line from 3rd floor to 7th floor and the racket of providing unauthorized calls started again from Coaxial Maintenance Junction 7th floor. Accused R.D Gangwar was given facility of two ISD complementary calls or Rs. 250/- per night. The STD/ISD line was diverted from 3rd floor to 7th floor during night hours. Accused S.P. Grover was Incharge of Coaxial Maintenance Junction,7th floor. He had been CBI Vs. Lala Ram -73- availing facility of complementary STD/ISD calls. He was aware that STD/ISD facility, SPC Tax had been closed from his office. Accused R.B. Dubey, R.B. Chaubey and Jai Prakash had been working in Coaxial Maintenance Junctionl at 7th floor as regular majdoor. They were providing STD/ISD call facility unauthorizedly during surprise checking.
86. Accused Lala Ram had led the CBI team to a customer at Naraina and he contacted accused Jai Singhania and received Rs. 300/- from him towards charges of STD/ISD calls facility which had had availed. Accued Lala Ram also led the team to M-25, Kirti Bhawan and contacted accused Sunil and received Rs. 220/- for unauthorized STD/ISD call facility provided earlier. On 28.01.94, documents were seized from R.S. Aggarwal, Astt. Engineer, Junction Coaxial Maintenance, MTNL. Attendance register were also seized along with duty chart. On 24.05.95 he had seized documents from CBI Vs. Lala Ram -74- Ram Gopal, JTO, Junction Coaxial and also two duty chart registers and attendance registers.
87. On 04.07.95, documents were seized from Ved Prakash Gupta, SDE, Coaxial Maintenance Opening and Closing Section. He also seized two original attendance registers. The instrument Ex. PW-1 & P-2 were the ones which had been seized from Coaxial Maintenance Junction, 7th floor, Kidwai Bhawan. During course of investigation, he got recorded statement U/s 164 Cr.P.C. of Ashok Kumar who was granted pardon and made approver. The pardon had been granted on the basis of application Ex. PW34/Q moved by him.
88. During investigation, documents, slips, notebook, diaries were recovered from the house search of accused Lala Ram. These documents and slips were written by various regular majdoors from time to time. They were Ex. PW34/U, Ex. PW34/V,Ex. PW34/W,Ex.
CBI Vs. Lala Ram -75- PW34/X,Ex. PW34/Y,Ex. PW34/Z,Ex. PW34/AA,Ex. PW34/AB,Ex.PW34/AC,Ex.PW34/AD,Ex.PW34/AE,Ex. PW34/AF,Ex. PW34/AG,Ex. PW34/H,Ex. PW34/AJ. The diaries and notebooks had also been seized which were Ex. PW20/M,Ex. PW20/N,Ex. PW20/O,Ex. PW20/R,Ex.PW20/K,Ex.PW20/G,Ex.PW20/F,Ex.PW2/Q ,Ex.PW20/E,Ex.PW20/D,Ex.PW20/J,Ex.PW20/H,Ex. PW20/L.
89. He collected admitted handwriting of the accused Ajay Kumar Bhardwaj. The documents were received by him vide letter Ex. PW34/AK. The appointment order of accused A.K. Bhardwaj was Ex. PW34/AL. Admitted handwritings of accused Amarnath, Sarwan Kumar R.B. Chaubey, Sushil Kumar and Lala Ram were seized from Sh. Ram Gopal, JTO vide memo Ex. PW34/AM. Admitted handwriting of accused Amarnath was Ex. PW34/AN. Admitted writings of accused Sarwan Kumar were Ex. PW34/AB. They had been seized vide CBI Vs. Lala Ram -76- memo Ex. PW34/AN.
90. Admitted writings of accused R.B.Chaubey were seized vide memo Ex. PW34/AM. The documents had been seized from Subhash Chand DE (TME), Kidwai Bhawan on 18.05.95.
91. Admitted handwritings of accused Sushil Kumar were also seized vide memo Ex. PW34/AM. They were Ex. PW34/AS.
92. The admitted handwriting of accused Lala Ram were collectively Ex. PW34/AT. They were seized vide memo Ex. PW34/AM and PW34/AQ.
93. Admitted handwriting of accused S.P. Grover was Ex. PW34/AB. It was seized vide memo Ex. PW34/AQ.
94. Admitted handwriting of accused R.B.Dubey was CBI Vs. Lala Ram -77- Ex. PW34/AW. It was seized vide memo Ex. PW34/AQ.
95. Admitted handwriting of accused Jai Bhagwan who was not chargesheeted was Ex. PW34/AX.
96. Admitted handwriting of accused Jai Prakash was Ex. PW34/AY. It was seized vide memo Ex. PW34/AQ.
97. Admitted handwriting of accused Gulshan Rai was Ex. PW3/B1, Ex. PW3/A, Ex. PW3/B2 to B16. It was seized vide memo Ex. PW34/AQ.
98. Admitted handwritings of accused R.D. Gangwar were Ex. PW10/C8, PW10/C7, PW10/C1, PW10/C2, PW10/C3, PW10/C4, PW10/C5 , PW10/C6 & PW10/D1, PW10/D2. Remaining admitted handwritings of R.D. Gangwar were Ex. PW34/AZ-1 to A-9.
99. Witness claimed that during course of investigation, CBI Vs. Lala Ram -78- he collected various specimen handwritings. Accused R.D. Gangwar whose specimen handwriting was Ex. PW34/BA had expired. Specimen handwriting of accused Lala Ram were Ex. PW5/A-1 to A-78. Specimen sheets A-1 to A-11 contained his signatures. Similarly specimen sheet Ex. PW5/A-28 to A-78 were also signed by him.
100. Specimen handwritings of accused R.B. Chaubey were Ex. PW34/BC.
101. Specimen handwritings of accused Jai Prakash were Ex. PW34/BD.
102. Specimen handwritings of accused Amarnath were already Ex. PW2/B-1 to B-12.
103. Specimen handwritings of accused Sushil Kumar were already Ex. PW2/D-1 to D-7. Other specimen sheets CBI Vs. Lala Ram -79- were Ex. PW34/BF.
104. Specimen handwritings of accused Sarwan Kumar were already Ex. PW2/C-1 to C-7 and the remaining specimen sheets were Ex. PW34/BG.
105. Specimen handwritings of accused R.B.Dubey were already Ex. PW4/B-1 to B-5. Remaining were Ex. PW34/BH and PW34/BJ.
106. Specimen handwritings of accused Suresh Lata were already Ex. PW5/B1 to B19. Remaining specimen sheets were Ex. PW34/BK.
107. Specimen handwritings of accused Gulshan Rai were already Ex. PW5/C1 to C18, C19, C34. Remaining specimen sheets were Ex. PW34/BL.
108. Specimen handwritings of accused S.P. Grover were CBI Vs. Lala Ram -80- already Ex. PW4/A1 to A5, PW5/D-1 to D-8. Remaining specimen sheets were Ex. PW34/BM.
109. Specimen handwritings of accused Ajay Kumar were already Ex. PW11/A-1 to A-19.
110. Specimen handwritings of accused Jai Bhagwan were Ex. PW34/BN.
111. Specimen handwritings of Indu Sehgal were Ex. PW34/BP.
112. Specimen handwritings of Mahender Pal Aggarwal were Ex. PW34/BQ.
113. The witness claimed that questioned documents, specimen sheets and admitted writings of the accused persons were sent to GQED for opinion. The covering letter was written by Sh. R.K. Dutta S.P. which was Ex.
CBI Vs. Lala Ram -81- PW34/BR. Subsequently, letter Ex. PW34/BS was also written by him. During course of investigation, fortnightly meter readings of telephone nos. 3316826 which was Ex. PW34/BT were received. Inspt. R.S. Khatri seized passbooks from house of accused R.D. Gangwar, while he had seized documents from A.N. Jha, SDE (FRS), Rajouri Garden telephone exchange, vide memo Ex. PW12/A. The witness lastly claimed that he recorded statement of witnesses, scrutinized the documents, obtained sanction for prosecution.
114. Upon being cross examined by accused Lala Ram, Inspt. Azad Singh claimed that they had reached Kidwai Bhawan at about 6.30 am. Upon reaching room of the accused Lala Ram they found one regular majdoor on night duty. The regular majdoor informed him that one machine local telephone had been connected while the other Multi frequency system had been connected for making international calls. He explained the working of CBI Vs. Lala Ram -82- the systems. He further informed that during night he used to receive telephone calls from the residence of accused Lala Ram. Either Lala Ram or his wife used to call and convey telephone numbers. The numbers were noted down on a piece of paper. The regular majdoor used to ring up the telephone numbers and obtain requirement of the subscriber. Thereafter, international call used to be made from Multi Frequency system. He then admitted that they had seized two instruments and some paper slips which were in possession of the regular majdoor. He claimed that raid concluded at about 4.00 pm. They had also gone to 3rd floor of the building as there was a coaxial junction over there also.
115. Upon being cross examined by Ld. Counsel for accused S.P. Grover and Gulshan Rai, he claimed that he was informed by Mr. Duggal that telephone number 6440558 and 6896650 were kept under observation. He further admitted that there were two telephone CBI Vs. Lala Ram -83- connections available at coaxial junction. One was attached with two wire bay, while the other was attached with four wire bay. He further admitted that he did not try to contact people in foreign countries to whom calls had been made. He also did not record statement of those people to whom call had been made abroad, to the effect that they had received calls from local Indian subscribers. He also denied the suggestion that figure of loss mentioned by the prosecution was an imaginary figure and the department had not suffered any loss. He admitted that quantum of loss had been estimated by multiplying the numbers recovered by Rs.125-150/-. He claimed that duty hours of accused S.P. Grover were 9.30 am to 4.30 pm. He claimed further that he did not know whether the accused had to visit Nehru Place, cable route to Faridabad and Ghaziabad. From the documents recovered from accused Lala Ram there were numbers which indicated that accused Lala Ram had helped accused S.P. Grover to make calls. He denied the CBI Vs. Lala Ram -84- suggestion that parchis had been planted by him. Accused Sobhraj Jai Singhania was arrayed as accused as he had made payment to accused Lala Ram in presence of witness, whereas PW Bhagwan Bhairwani was cited as a witness because no recovery was made from him. He further stated that he could not admit or deny whether there were more than 15 Gulshan Rai working as JE in the department.
116. Upon being cross examined by Ld. Counsel for accused R.B. Dubey, R.B. Chaubey and Jai Prakash, he claimed that he did not remember as to how many times he had called R.B. Dubey, R.B. Chaubey and Jai Prakash to his office and how many times their handwriting samples were taken. He admitted that regular majdoors were non technical unskilled persons. He claimed that he had visited 3rd floor after coming to know that illegal connections from 3rd floor to 7th floor had been made to facilitate international calls. The CBI team had comprised CBI Vs. Lala Ram -85- of technical people.
117. Upon being cross examined by advocate for accused Amarnath he admitted that he did not possess any technical qualifications. He had made no enquries regarding make, model or year of manufacture of multi frequency tester. He further admitted that accused Amarnath was not on duty at the time of raid. He claimed that he did not remember whether name "Amarnath" was written on any paper or not. He admitted further he had not test call all the telephone numbers which had been seized from Kidwai Bhawan except for one number which had been seized from accused R.B. Dubey. He denied the suggestion that accused Amarnath had been falsely implicated.
118. Upon being cross examined by advocate for accused Sobhraj Jaisinghania, he denied the suggestion that no recovery of Rs. 300/- was made from accused Lala Ram CBI Vs. Lala Ram -86- which had been handed over by accused Sobhraj Jaisinghania.
119. Upon being cross examined by Ld. Counsel for Ajay Kumar, he claimed that he did not remember having recorded any statement to the effect that accused Ajay Kumar and Lala Ram knew each other. He denied the suggestion that they had already intimated about the raid and so MTNL Officer had reached 7th floor of Kidwai Bhawan. A STD test call was got done from multi frequency tester. He admitted that Mr. S.M.Aggarwal had joined as independent witness.
120. The next witness to be examined was Mr. S.M. Aggarwal. He testified that in the year 1994 he was working as Vigilance Inspector in NDMC. On the directions of Director Vigilance, he had gone to 7th floor of Kidwai Bhawan along with CBI team on 05.01.94. There were 12/13 persons present over there, but they all CBI Vs. Lala Ram -87- slipped away. Only one person remained present. He was found with a slip on which some telephone numbers had been written. The person who was found in the room was asked to dial one phone number written on the slip as a test case. ON directions of CBI Officers, he dialed the number and connected a telephone in Punjab. Thereafter, conversation took place between that person in Punjab and the one in a foreign country which perhaps was USA. Witness claimed that he (PW SM Aggarwal) overheard the conversation which continued for about half an hour. The conversation was between husband and a wife. Ex. PW16/A was the slip which was found in the possession of person found in the room at the time of raid. Ex PW34/B to PW34/G, PW34/J & PW34/K contained his signatures which he had put at the asking of CBI Officers.
121. Upon being cross examined he claimed that the was not called by the CBI to make any enquiry.
CBI Vs. Lala Ram -88-
122. PW36 was Subhash Chand. He testified that he was working as General Manager, DSPT, BSNL Jhandewalan. On 05.01.94, he was directed by the vigilance department of MTNL to visit junction Coaxial Station 7th floor, Kidwai Bhawan. He reached there at about 9.00 am. CBI team already had reached there. He saw wires hanging on two wire/four wire bay. Accused Dubey was also present as duty staff. He deposed further that at the time of his visit, Janpath digital coaxial system was working. There were two analogue coaxial systems working from Janpath to Faridabad and Ghaziabad. They had been closed in 1992 and 1993. The systems had been installed to provide junction lines between Delhi and Faridabad and Ghaziabad. Digital coaxial system was used to provide to mega bite links for connecting local telephone exchanges at Delhi and Faridabad. He deposed further that there was no need to use two wire bay and four wire bay in digital coaxial system. They were supposed to be dismantled. The cable leading to the CBI Vs. Lala Ram -89- exchange from these wire bays had already been dismantled and disconnected. The witness deposed that he found one instrument was lying connected to two wire bay and four wire bay. It was meant for making telephone calls for coordination purpose with different exchanges. Multi frequency tester was used to test analogue circuits of coaxial systems. He claimed further that when he reached he found one multi frequency tester over there. At that time accused S.P. Grover was posted as AE (Junction Coaxial) and accused Lala Ram and Mahender Pal and Shri Pal were posted as JTOs. Accused R.B. Dubey and 3 or 4 other persons whose names he did not remember were regular majdoors. Two or three telephone connections were working in the coaxial system. One was meant for the user by Asstt. Engineer (AE) while two were for use of JTO and other staff. All the telephones were working at the coaxial room at the time of his visit. He testified further that one spare telephone which was meant to be used for testing CBI Vs. Lala Ram -90- was found connected with two wire bays and four wire bay.
123. He deposed that accused S.P. Grover was directly responsible for supervising and maintenance of the other coaxial station at Tis Hazari, Nehru Place and coaxial cables for Faridabad and Ghaziabad. He further deposed that accused Lala Ram was posted at Tis Hazari coaxial Station in 1992. Sometimes he used to perform duty at Janpath also. He had not passed any orders for accused Lala Ram to perform duty at Janpath but in emergency he could be deputated to work at both the places. The emergency duty used to be for 2/3 months. Seizure memo Ex. PW34/AQ contained his signatures. Specimen handwriting sheet Ex. PW34/B had been taken in his presence.
124. Upon being cross examined by advocate for the accused S.P. Grover and Gulshan Kumar, he testified that CBI Vs. Lala Ram -91- Grover used to sit in the cabin while other staff used to sit outside in the hall. The cabin was without roof. He admitted that he was a technical person and on his previous visits he did not see any illegal activities. He further admitted that he could not say whether it was not feasible to make telephone calls abroad from the instruments lying over there. He further submitted that coaxial junctions had been disconnected in the year 1992/1993, but he admitted that political Session of Congress was scheduled to be held at Surajkund in March ,1993 and for that purpose two communication links had been established between Delhi and Surajkund. He further admitted that one such junction was working at 7th floor and it was routed through 3rd floor, coaxial junction. He admitted further that there was a huge fire incident at Kidwai Bhawan in May/June 1993.
125. Upon being cross examined by advocate for other accused he admitted that he had seen accused Lala CBI Vs. Lala Ram -92- Ram working in both the exchanges i.e. Tis Hazari and Janpath.
126. Thereafter Mr. N.C. Sood was examined as PW37. He testified about receipt of documents from the CBI, their examination and the reports submitted by him. He cross examined very extensively by advocates for the various accused. He denied the suggestion that he had been influenced by officers of the Prosecution.
127. Prosecution thereafter examined Sh. C. Chandran Nair. Sanction to prosecute accused Lala Ram had been granted by Sh. K. Govindan. As Mr. Govindan was bed ridden and was not in a position to appear in the Court, Mr. Chandran Nair entered the witness box. He identified signatures of Mr. K. Govindan on the sanction order. He further deposed that Mr. Govindan was possessed of good mental health and was a prudent man.
CBI Vs. Lala Ram -93-
128. Prosecution thereafter examined Sh. Razi Ahmed. He deposed that in October, 1995, he was posted as Sub-Divisional Engineer. He accorded sanction for prosecution of accused Jai Prakash. The sanction order was Ex. PW39/A. He claimed that he had examined all relevant documents provided by CBI while according sanction. Upon being cross examined he claimed that he did not remember as to who had brought the file to his office. He admitted having received draft sanction order. He also admitted that sanction order Ex. PW26/A, PW29/A, PW39/A and PW40/A were similar except last two paragraphs.
129. Prosecution thereafter examined Mr. R.B. Katarki. He testified that he had issued sanction order Ex. PW40/A according sanction for prosecution of accused R.B. Dubey. He had examined all documents furnished by CBI before doing the job. Upon being cross examined he claimed that he did not remember as to who had CBI Vs. Lala Ram -94- brought the file to his office. He admitted having received draft sanction order. He also admitted that sanction order Ex. PW26/A, PW29/A, PW39/A and PW40/A were similar except last two paragraphs.
130. After closing of Prosecution Evidence, Statement U/s 313 Cr.P.C. was recorded. After application of prosecution U/s 311 Cr.P.C. was allowed and some witnesses were examined, further statement U/s 313 Cr.P.C. was recorded. In the statement all the accused claimed to have been falsely framed and came up with varying explanations. However, evidence was led only by accused Lala Ram in defence. He examined Mr. Hari Singh Asstt. Vigilance Officer, MTNL. He deposed that he was in vigilance department. He did not have any file with him involving accused Lala Ram before 04.01.94. He expressed ignorance about acquittal of accused persons in RC3(A)/94.
CBI Vs. Lala Ram -95-
131. I have heard Ld. P.P. Mr. Praneet Sharma and Ld. Counsels for different accused and also accused Lala Ram at length. I have also gone through the file. Now I shall take up case of each individual accused one by one.
Lala Ram
132. After his arrest his handwriting and signature samples were taken. PW-5 Sh. J.C. Sharma had testified that in 1995 he was working with FCI, Barakhamba Road, New Delhi. In his presence accused Lala Ram and others gave specimen writings and signatures to CBI. His specimen writings were S-1 to S-78 which are Ex. PW5/A-1 to PW5/A-78. He also gave his specimen samples which are S-217 to S-245 and S-250 to S-262. The same were Ex. PW34/BB. I.O. Inspector Azad Singh in his testimony deposed that he had seized admitted writings pertaining to the accused Lala Ram during course of investigation. They were mark A-1 to A-9, A- 156 to A-160. They were collectively exhibited as CBI Vs. Lala Ram -96- PW34/AT.
133. During course of raid at the residence of accused Lala Ram certain note books, diaries and chits were seized. The said seized articles were Ex. PW20/M, PW20/D, PW20/E, PW20/A, PW20/J and PW20/H. The said questioned writings were Q-1 to Q-124, Q-125 to Q- 176, Q-180 till Q-1123 barring few Q numbers in between which pertained to other accused. Handwriting expert in his opinion gave very categorical report that the person who had given specimen writings S-1 to S-18, S- 217 to S-245, S-250 to S-262 also had written the aforesaid seized questioned writings and signatures.
134. In the charge sheet which had been filed, accused Lala Ram was alleged to be kingpin of all the illegal activities. According to the charges framed he alongwith other remaining 13 co-accused had entered into criminal conspiracy and illegally installed a multi CBI Vs. Lala Ram -97- frequency tester on the 7th floor of Kidwai Bhawan. He and other co-accused used to contact private persons and provide them illegal unmetered STD/ISD facilities at cheaper rates. The clients used to contact him or his wife at their residence at Mahipalpur Extn. Accused Lala Ram or his wife used to handover written slips containing local telephone numbers to regular mazdoor on duty for maturing illegal calls. Accused also used to collect money for such calls and distribute them. Accused Sobhraj Jaisinghania had paid him Rs. 300/- and accused Sunil had paid him Rs. 220/- for illegal calls already made. He and other co-accused had cheated his department to the tune of Rs. 67,20,000/-. He had also damaged STD/ISD circuit of the 3rd floor, Kidwai Bhawan and had illegally diverted it to 7th floor of Kidwai Bhawan and finally he being a public servant had abused his official position by corrupt illegal means.
CBI Vs. Lala Ram -98-
135. Prosecution examined 40 witnesses against the accused while accused examined one in his defence.
136. After accused Lala Ram was arrested, during course of investigation he was taken to people whom he had obliged with illegal calls. PW1 Mann Singh testified that on 7.1.94 he went to CBI office at instance of his officers. He was introduced to Lala Ram. He was asked to pose as MTNL J.E. and accompany Lala Ram for collection of money. The witness deposed that he alongwith accused Lala Ram and CBI team went to Naraina Industrial Area. Accused Lala Ram took him to a garment factory where they met the owner. Lala Ram told the owner that he had been transferred and in future payments be made to him (PW-1 Mann Singh). Owner who turned out to be co-accused Sobhraj Jaisinghania paid Lala Ram Rs. 300/- towards previous balance. Accused Lala Ram accepted the money. Thereupon CBI team members came in. Thereafter witness claimed that CBI Vs. Lala Ram -99- Lala Ram took them to Kirti Nagar. There they met a person who was stated to be son of retired Magistrate. He paid Rs. 200/- to Lala Ram which was accepted by him. The GC notes which were obtained by Lala Ram from the said two persons were Ex. R-1 to R-5. They were seized by CBI. PW-5 J.C. Sharma testified that in his presence accused Lala Ram and other accused had given specimen writings to CBI officials. The said documents were Ex. PW5/A1 to PW5/A-78. PW-7 similarly testified that he too witnessed the accused giving specimen handwritings and signatures in the CBI office. PW-9 Jaipal Singh was Divisional Engineer MTNL. He deposed that in 1998 he was posted as Sub. Div. Engineer, Vasant Kunj Telephone Exchange. He had issued Ex. PW9/A to PW9/B. Ex. PW9/A was regarding opening particulars of telephone no. 6896650 while Ex. PW9/B was fortnight meter reading of the said telephone no. The said telephone no. was opened in lieu of old telephone no. 3294650 at the residence of accused Lala Ram.
CBI Vs. Lala Ram -100- Telephone no. 6896650 was disconnected vide O.B. dt. 14.1.94.
137. PW-10 Ved Prakash Gupta had produced original attendance record of accused R.D. Gangwar and Ashok Kumar Peon. The witness was subsequently recalled U/s 311 Cr.P.C. wherein he deposed that R.D. Gangwar the then JTO was responsible for opening of new circuit and VVIP hot lines. For making international calls there was an instrument called multi frequency tester. There were unlimited pairs of wires connecting VDF and diversions could be done by connecting wires. It was practically not possible to check diversion of all the circuits.
138. PW-14 Shri Bhagwan Bahirwani deposed that he had been contacted by a person who introduced himself as Mehta. He offered him overseas calls at cheaper rates. An agreement was arrived at and he CBI Vs. Lala Ram -101- agreed to pay Rs. 125 per call without any time limit. He identified accused Gulshan Rai as the person who had contacted him posing as Mehta.
139. PW15-Ashok Kumar was from BSNL. He deposed that his duty was with R.D. Gangwar. Gangwar asked him to refer his name to his friends who wanted to make calls abroad. People used to pay Rs. 125/- for each call. While Gangwar used to get Rs. 100/-, he (PW15- Ashok Kumar) used to get Rs. 25/- per call. Upon Gangwar's instruction he used to keep away the ulling of the Gauhati Channel no. 1/11 in the night. Before leaving office in the morning he used to put it back in its right place. PW16 was MR. Govind Rajan from UCO Bank. He joined CBI as an independent witness. He deposed that he alongwith CBI officials reached Kidwai Bhawan at about 6.00 am. The team received information from other team members who had gone to the house of accused Lala Ram. The information was to the effect that CBI Vs. Lala Ram -102- accused Lala Ram had given a slip containing some telephone numbers to watchman on duty. The witness deposed that they reached 7th floor, Kidwai Bhawan. They met accused R.B. Dubey. His personal search revealed a slip containing lot of telephone numbers. R.B. Dubey informed the CBI officials that Lala Ram used to provide them telephone numbers for making calls. R.B. Dubey then demonstrated their modus operandi. He dialed a local number. From the said local party, he obtained international numbers and dialed through other instrument. The local party got connected with the international number. Their entire telephonic conversation was heard by another independent witness Sh. S.M. Aggarwal through parallel line. The two instruments identified by the witness were E x. P-1 and P-2.
140. PW-19 was Sh. S.K. Goel. He was member of raiding team which had raided Kidwai Bhawan on 5.1.94 CBI Vs. Lala Ram -103- and had caught accused R.B. Dubey. His personal search yeiled slip containing local and international numbers. He testified that accused R.B. Dubey had obtained international number from a local party and had dialed international number through instrument Ex. P-2 and the call had materialized. The same was heard by independent witness Sh. S.M. Aggarwal on a parallel line.
141. Prosecution thereafter examined Sh. V.P. Badola as PW-20. Evidence of this witness is of grave importance. He claimed that he was Dy. Manager in MMTC. He had joined the search party to raid house of accused Lala Ram at Mahipalpur. Upon reaching his house, they found accused Lala Ram holding a diary in his hand. The telephone calls coming on his phone were also attended during period of the search. Search cum seizure memo was prepared which was Ex. PW20/A. Accused Lala Ram, had disclosed that he was being CBI Vs. Lala Ram -104- helped by accused R.D. Gangwar in making unauthorized telephone calls. He took the raiding party to the house of R.D. Gangwar which was also searched. A large number of documents were seized from the house of accused Lala Ram. They were in the form of note books mark D-5, D- 6, D-8, D-9, D-10 D-11, D-22, D-23 and diaries seized were mark D-7, D-29 and D-30. Diary mark D-64 and D- 28 and passbooks were also seized. Search of house of accused Lala Ram also revealed bunch of slips and papers which were seized vide memo Ex. PW20/A. The bunch of papers were mark D-30, D-15, D-31, D-25, D-27 and D-32.
142. CBI thereafter examined Sh. S.C. Duggal A.G.M. MTNL. Mr. Duggal testified that they had received information that accused Lala Ram and his associates were providing ISD calls at cheaper rates. He made a complaint to CBI Ex. PW21/A. Telephone no. 6896650 was kept in observation. He also joined raiding CBI Vs. Lala Ram -105- party at the time of raid at the house of accused Lala Ram. At that time accused Lala Ram was talking to somebody on telephone. During course of raid, large no. of calls were received on telephone no. 6896650 which were attended by members of the CBI team. A memo indicating time of call, name of the person and telephone numbers were prepared. The said memo was Ex. PW20/B. Accused Lal Ram also made disclosure statement Ex. PW20/C regarding unauthorized, unmetered STD/ISD calls. From the documents seized from the house of accused Lala Ram, he came to know that calls were being made to various destination since 1990.
143. PW-23 Atul Chawla deposed about computer printout of telephone no. 6896650 which was kept under observation.
144. PW-24 Nathi Ram was again a member of CBI CBI Vs. Lala Ram -106- team which had raided Kidwai Bhawan and apprehended accused R.B. Dubey and recovered chits from him. He otherwise was employee of MTNL. PW-28 Mahenderpal deposed that he was posted as JTO in Kidwai Bhawan. On 5.1.94 when he reached his office, he came to know that CBI team were present over there. He was asked by CBI official to trace out circuit of multi frequency tester installed at 4 wire bay in coaxial maintenance at 7th floor . He traced the tie of telephone no. 3316826 at instance of CBI and found that it was going to tie no. 21 & 22 JTC ( Junction Testing Group). He claimed that he found multi frequency tester instrument installed at K-13/7 channel of Nehru Place side and wiring of corresponding channel no. 261, 262 & 263 of old coaxial tag Block at two wire bay, one ordinary instrument was in place. The instrument S. Baj-Dual Tone Single Tester was produced in Court. The witness stated that rough sketch mark prepared by him was of the same instrument which was produced in the Court. The said instrument was Ex. P-2.
CBI Vs. Lala Ram -107- This witness was recalled U/s 311 Cr.P.C. by me. The same instrument was shown to him and he was asked whether with the help of that instrument any call could be made. The witness deposed that as per his knowledge call could be made but he was not very sure about it. Upon being cross examined by Ld. PP he admitted having made statement to the I.O. He further admitted to have stated in his statement that a client in Delhi was contacted on ISD/STD line on 4 wire bay where multi frequency tester equipment was installed on the same channel i.e. K-13/7 Nehru place. The witness further was shown Ex. PW16/D. It was an attendance register. He identified it as attendance register of the staff posted at junction coaxial station Jaipur in November, 1993- January, 1994. It contained names of accused Lala Ram, R.B. Dubey, R.B. Chaubey and Jai Prakash.
145. Prosecution thereafter examined PW-31 Inspt. Rai Singh Khatri. He testified that that he was a member CBI Vs. Lala Ram -108- of the raiding party which had searched house of accused Lala Ram. He deposed that at the time of raid accused was holding a note book in his hand and was noting some telephone numbers. Thereafter Inspt. Mishra and independent witness Mr. Badola were asked to handle telephone instrument no. 6896650 which was installed at the residence of accused Lala Ram and note down the details of the callers. Lala Ram had disclosed names of other co-accused and their modus operandi. His disclosure statement Ex. PW20/C was recorded and Inspt. Mishra prepared list of telephone calls received at the official telephone no. of the accused. 30 telephone calls were received from 6.30 am onwards. House of accused was searched and incriminating documents were seized. Seven note books and bunch of papers and diaries were seized. PW32 Javed Siraj was also from CBI. He deposed that he joined the investigation. He alongwith CBI team and accused R.D. Gangwar (since expired) went to Lajpat Nagar premises no.K-2, Lajpath Nagar-2.
CBI Vs. Lala Ram -109- They were to collect money against the calls charges from Ms. Indu Sehgal. She was not met and accused R.D. Gangwar was asked by her husband to come some other time as he was not aware of the money to be paid. Premises of Indu Sehgal were searched and a memo Ex. PW32/A was prepared. The next witness was Arun Sehgal. He did not support the prosecution.
146. Inspector Azad Singh was I.O. of the case. He testified as PW-34. Thereafter Mr. S.M. Aggarwal entered the witness box. He was also an independent witness. He deposed that on 5.1.94 he had gone to Kidwai Bhawan as per directions of his senior officers. There were 12 or 13 persons present over there but they all slipped away. Only one person was found present in the room and slips containing telephone numbers were found on him. On instructions of CBI official, the said person dialed a telephone number which connected to a telephone in Punjab. Thereafter conversation took place CBI Vs. Lala Ram -110- between the person in Punjab and U.S.A. The conversation continued for about half an hour and he (PW-35 S.M. Aggarwal heard the conversation on another instrument which was provided to him. It was between husband and wife. The witness was recalled subsequently U/s 311 Cr.P.C. wherein he claimed that the conversation was made probably from TaranTaran in Punjab to U.K. However he reiterated that the said conversation was between a couple.
147. Mr. Subhash Chand General Manager, BSNL deposed that on 05.1.94 he had visited coaxial junction, 7th floor, Kidwai Bhawan. He reached there in the morning hours. At about 9.00 am, CBI team already was there and some telephone instruments were also lying there. Accused R.B. Dubey was present over there. He was on night duty. At that time there were two analogue coaxial systems working from Janpath to Faridabad and Ghaziabad. They had been closed till 1992-93. Digital CBI Vs. Lala Ram -111- coaxial system was used to provide two mega bit links for connecting local telephone exchanges at Delhi and Faridabad. The witness deposed that there was no need to use two wire bay and four wire bay in digital coaxial system. They were to be dismantled. Cable leading to the exchange had already been disconnected but one instrument was lying connected to two wire bay and four wire bay. Witness further deposed that multi frequency tester was used to test analogue circuits of coaxial system. At the time of his visit one multi frequency tester was there. It was further submitted that accused S.P. Grover was posted as A.E. Junction coaxial while accused Lala Ram, Mahender Pal and Sripal were posed as JTOs. Accused R.B. Dubey and R.B. Chaubey and three or four other persons were regular mazdoors. There were two or three telephones working in coaxial system. One was meant for A.E. and two were meant for JTOs and other staff. All the telephones were working at the time of his visit. The spare telephone which was meant CBI Vs. Lala Ram -112- to be used for testing was connected with two wire bay and four wire bay. He claimed that he did not remember if the multi frequency tester was connected or not. According to the witness accused S.P. Grover was directly responsible for supervising and maintenance of the coaxial junction while Lala Ram used to perform his duty at both the places.
148. Prosecution then examined handwriting expert Mr. N.C. Sood and thereafter Sh. C. Chandran Nair. Mr. Nair deposed regarding the sanction order which had been passed for prosecution of accused Lala Ram. Sanction had been granted by Sh. K. Govindan. The same was Ex. PW38/A. Court had summoned the sanctioning authority Mr. K. Govindan. A letter was received from Mr. Govindan by the Court to the effect that he was suffering from various ailments and was bed ridden. He prayed that he was unable to travel and attend the Court because of his medical condition. As Mr. Govindan was CBI Vs. Lala Ram -113- bed ridden and unable to appear in the Court and testify, Mr. Chandran Nair had appeared. He identified signatures of sanctioning authority. He further deposed that Mr. Govindan was very prudent man. He used to put his signatures on documents only after going through them. He further deposed that he possessed good mental health. The witness was cross examined, but hardly anything emerged which could shake his testimony. Accused submitted that the witness had merely identified signatures on the sanction order and he did not depose about validity of the sanction which had been accorded. I am afraid it is not so. The witness very categorically had deposed that Mr. Govindan always used to go through the documents carefully before signing. He also possessed good mental health at that time and took decision after due consideration. His decisions were just and proper. The accused in his further statement U/s 313 Cr.P.C. claimed that prosecution has failed to prove whether Mr. Govindan was alive or not. I would submit that this Court CBI Vs. Lala Ram -114- had received a letter sent by Mr. Govindan himself and the said letter was dt. 18.6.10. So there is no reason to doubt existence of Mr. Govindan. As Mr. Govindan was unable to attend the Court and depose, the prosecution did the right thing by examining Sh. C. Chandran Nair. No other course was open to the prosecution. The witness had deposed about mental faculties and working culture of Mr. Govindan at that time.
149. In the case titled as "The public Prosecutor Vs. P. Subhash Chandra Reddy":AIR 2003 Crl. Law. Journal 4776 CBI did not examine the person who had actually accorded sanction. It had examined a person who was familiar with handwriting of the sanctioning authority. Hon'ble Court held that sanctioning authority had not only referred to each and every transaction said to have been undertaken by the accused but had also annexed list of instances providing the particulars such as name of the account holder, number of the account, CBI Vs. Lala Ram -115- amount borrowed etc.. It quoted case of Indu Bhushan Vs. State of West Bengal: AIR 1958 S.C. 148 wherein Hon'ble Apex Court had held that it would be sufficient compliance with provisions of the Act if sanctioning authority had referred to the facts leading to initiation of prosecution. Coming back to the sanction order in the case in hand, if we go through the same Ex. PW38/A, we find that it is a sanction order running into six pages wherein sanctioning authority Mr. K. Govindan gave details of the case and also manner of cheating done by the accused. Thus there is no reason to doubt validity of the sanction which had been granted. The Court therefore holds that valid sanction had been granted.
150. Accused Lala Ram examined Mr. Hari Singh Asstt. Vigilance officer in his defence. The witness claimed that he was posted in vigilance department since July 2000. Whenever any complaint or communication was received it was entered in a register and looked into.
CBI Vs. Lala Ram -116- He produced a file containing letter dt. 3.1.94. It was written by Sh. S.C. Duggal A.E. (vigilance) and addressed to S.P. (CBI). He claimed that the copy did not bear any file or registration no. Copy of the letter was Ex. DW1/1. He claimed that he did not have any file with him involving the accused.
151. Accused Lala Ram advanced arguments himself, while arguments on behalf of his wife Suresh Lata had been advanced by their advocate. Ld. Public Prosecutor also made his submissions.
152. Accused Lala Ram argued that letter Ex. PW21/A had been prepared in the office of CBI because it was not on the letter head of MTNL department. On the basis of this letter CBI commenced its investigation and RC was registered. To my mind it does not matter whether letter was written on a simple piece of paper or it was on the letter head of MTNL. There is no rule or CBI Vs. Lala Ram -117- requirement that all complaints made to CBI must be on the letter head of the complainant institution.
153. Accused further submitted that PW-18 V.K. Kapoor had claimed that vigilance Director had asked him to trace the call. In his cross examination witness claimed that Inspt. Azad Singh and B.K. Jain had come to him at about 5.30 am. According to the accused Lala Ram CBI had commenced raid at 6.30 am.
154. This is hardly a contradiction. The witness had claimed that Inspt. Azad Singh and B.K. Singh had come to him at about 5.30 am. In peak winter season a person can easily be misled whether it was 5.30 or 6.30 in the morning. Moreover the witness had claimed that it was about 5.30 am and not exact 5.30 am.
155. Further accused submitted that PW-15 had claimed that accused R.D. Gangwar had reached Kidwai CBI Vs. Lala Ram -118- Bhawan at about 11.00 am but PW-21 S.C. Duggal in his cross examination had claimed that search in the house of accused Lala Ram continued till evening. There is no anomaly. As per Ex. PW20/B search at the house of accused R.D. Gangwar was conducted between 8.15 a.m. to 9.00 pm. This was corroborated by PW-31 Rai Singh Khatri. According to the accused Ex. PW21/B which was printout of telephone no. 6896650 installed at the house of accused Lala Ram was a fabricated document. I am unable to appreciate as to how it can be termed as a fabricated document. It was computer generated and did not require any signatures. Accused further claimed that PW Mann Singh had been cited as witness of CBI in four cases, so he was a stock witness. He relied upon case titled as State of Gujarat through CBI Vs. Kumudhchandra Pranjivan Shah 1995 Crl. L. J. 3623 and case titled as State of Punjab Vs. Harbans Singh 2003 Crl. L.J. 2335.
CBI Vs. Lala Ram -119-
156. I am afraid the witness cannot be termed as a stock witness. He was working in vigilance department of NDMC. It was part of his duty to participate in investigation of such like cases. In State of Gujarat through CBI Vs. Kumudhchandra Pranjivan Shah 1995 Crl. L. J. 3623 the punch witness was a social worker, while in case titled as State of Punjab Vs. Harbans Singh 2003 Crl. L.J. 2335 Hon'ble High Court had held that witness is a stock witness and was not reliable. In the case in hand the witness was from vigilance department. It was his daily job to participate in such like activities and if he has participated in such like activities, he has to depose in Courts also. Further accused assailed testimony of PW-1 Mann Singh by saying that he had been told that accused Lala Ram had connived with booth owners but accused Sobhraj Jaisinghania from whom money had been collected was not a booth owner. It hardly matters. The main case of prosecution is that accused Lala Ram was running a CBI Vs. Lala Ram -120- racket of providing illegal unmetered calls to public at large which may have included booth owners. The witness had been told that accused Lala Ram had tampered with meters of STD and used to permit public to talk on telephone illegally.
157. Further accused stated that as per PW-31 Rai Singh Khatri there were one or two more persons present in his house at the time of raid. Accused submitted that their handwriting samples should have also taken. I do not think that there was any need for CBI official to take hand writing samples of other outsider persons in the house and lastly accused argued that his wife had filed Civil suit against the I.O. seeking damages, while he himself had filed contempt applications against his superiors. According to him this was a counter blast. I would submit that wife of accused indeed had filed a civil suit but by the time the present charge sheet was filed in the Court, even summons of that civil suit had not been CBI Vs. Lala Ram -121- served upon CBI. So far as contempt application of the accused is concerned, he indeed had filed contempt application against Chairman of Telecom commission but accused Lala Ram was not the only petitioner. There were 19 more Petitioners alongwith him in the said contempt application. If twenty people have filed contempt application against the Chairman of Telecom Commission, there was no reason as to why they would single out Lala Ram and frame him in this Case with help of CBI which is independent of Telecom Commission.
158. Learned PP submitted that testimony of PW 1,16,19,20,20,31,35,34&38 were relevant so far as this accused is concerned. He submitted that house of the accused was raided by the CBI team wherein some slips, diary, notebooks etc were recovered. He further submitted that tel. 6896650 has been installed at the house of accused Lala Ram which was subsequently disconnected after the raid. Documents which were CBI Vs. Lala Ram -122- recovered from his house were D-5 to D-12 which are Ex.PW20/D, E, M, F,H, J & PW34/U. Admitted handwritings of the accused were A-1 to A-9 which were Ex.PW34/AG and A-105 to A-148 which was Ex.PW34/AV and A-156 to A-160 which was Ex.PW34/AT. According to Ld. PP handwriting expert PW37 in his findings had given very clear report that handwriting on questioned documents was that of accused Lal Ram. Thus, according to Ld. PP case of prosecution stood proved against Lala Ram that he was the kingpin of the operation. He used to note down telephone numbers of users whom he had to oblige for illegal gratification.
159. In cases of criminal conspiracy one can hardly expect production of any direct evidence. Conspiracies are always hatched in secrecy. My Lord. Mr. Justice D.P. Wadhwa and Mr. Justice S.S. Mohd. Quadri in case titled as CBI Vs. Nalini held:
CBI Vs. Lala Ram -123- " The agreement, sine qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, writings, acts, omissions and conduct of the parties to the conspiracy which is usually done..."
160. Ld. Judges cited an earlier case titled as Sardar Sardool Singh Vs. State of Maharashtra Manu SC 0063/1963. It was held therein that agreement between the persons can be proved by direct evidence or may be inferred from acts and conduct of the parties. In Shiv Narain Laxmi Narain Joshi & Ors Vs. State of Maharashtra Manu/SC/0241/1979 Hon'ble Supreme Court had held that conspiracy was always hatched in secrecy and it was impossible to aduce direct evidence of the same. The offence can be proved only from the inferences drawn from the acts or illegal omission CBI Vs. Lala Ram -124- committed by the conspirators.
161. Coming back to the case in hand accused was an officer with MTNL. His house was searched. During two or three hours more than 30 requests from public persons were received at telephone at his residence. Those people wanted to make ISD calls to USA, Singapore etc.. This has amply been proved by independent witnesses. Public persons have no business to ring up residence of accused Lala Ram and request for ISD calls. There can be only one reason as to why public persons would ring up residence of an employee of MTNL and place their orders and that reason is that the said employee was facilitating illegal unmetered calls.
162. Recovery of large number of note books, diaries, slips of papers containing telephone numbers would indicate that indeed racket was being run on a large scale. Had it not been so, there would not been any CBI Vs. Lala Ram -125- occasion for recovery of voluminous documents bearing telephone numbers from his residence.
163. Hand writing expert gave his opinion that admitted handwritings A1 to A9, A156 to A160 which were Ex. PW34/AT matched with specimen handwritings S-1 to S-78 which were Ex. PW5/A1 to PW5/A78 and S-217 to S-245, S-250 to S-262 which was Ex. PW34/BB. They fully matched with the large number of questioned document which were Ex. PW20/A, PW20/D, PW20/E, PW20/H, PW20/J and PW20/M. His specimen handwriting and signatures were taken after the accused was apprehended. The questioned writings seized from his residence were Q-1 to Q-124, Q- 125 to Q-176, Q-180 to Q-1124 barring few Q numbers in between which pertained to other accused. The report of handwriting expert was very categorical that all these specimen writings, admitted writings and questioned writings belong to the same individual and that individual CBI Vs. Lala Ram -126- was Mr. Lala Ram. Had he not been involved in these activities there never could have been any occasion for recovery of large number of documents having thousands of telephone numbers from his residence. This clearly shows his involvement in the racket.
164. I therefore, hold that prosecution has been completely successful in making out its case against accused Lala Ram that he was the kingpin of a racket involved in making of illegal unauthorized, unmetered STD/ISD calls. It stands established that he had entered into criminal conspiracy with other co-accused for the said job. It has also established that he used to take money and had taken Rs. 300/- from his co-accused Sobhraj Jaisinghania for having provided with facility of illegal calls. It further stands established that he and other co-accused had cheated MTNL to the tune of RS. 67,20,000/- by providing said unauthorized, unmetered STD/ISD calls.
CBI Vs. Lala Ram -127-
165. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls to the accused.
166. However there is nothing on record to indicate that he himself had damaged or tampered with STD/ISD circuits. He is thus convicted U/s. 120-B r/w 420 IPC and U/s 13(2) r/w 13(1) (d) of P.C. Act 1988 and also for substantive offence punishable U/s 420 IPC separately.
CBI Vs. Lala Ram -128- Since he was an employee of MTNL and a public servant, he abused his position and also stands convicted U/s 13(2) r/w 13(1)(d) of P.C. Act.
Suresh Lata
167. Accused Suresh Lata happens to be wife of kingpin Lala Ram. According to prosecution though she was a housewife, she actively participated in the illegal activities and was a conspirator. According to the charge framed, she had conspired with other conspirators and had illegally installed a multi frequency signal tester on the 7th Floor of Kidwai Bhawan and accused Suresh Lata used to provide telephone numbers to the staff on duty for making the illegal calls. She has also alleged to have cheated MTNL to the tune of Rs. 67,20,000/- by helping in making of unauthorized unmetered STD/ISD calls.
168. Prosecution in support of its case examined PW-5 Mr. J.C. Sharma. He testified that he was working CBI Vs. Lala Ram -129- as Asstt. with FCI. In his presence accused Suresh Lata gave specimen writings to the I.O. which were Ex. PW5/B1 to PW5/B19. Similarly PW-7 Suraj Prakash also testified about the handwriting samples being given by Suresh Lata.
169. According to prosecution the clients who wished to make STD/ISD calls used to ring up residence of accused Lala Ram. Requirements of the client used to be noted down by accused Lala Ram or his wife Suresh Lata. It used to be conveyed to the regular mazdoor on duty at coaxial exchange Kidwai Bhawan. The calls used to be materialized from Kidwai Bhawan. I.O. Inspt. Azad Singh in his testimony deposed about specimen handwriting samples of the accused obtained by him on various dates. The same were Ex. PW5/B1 to PW5/B19. They had been marked S-130 to S-148 and S-358 to S-
402. The remaining specimen sheets were collectively exhibited as Ex. PW34/BK.
CBI Vs. Lala Ram -130-
170. According to the prosecution house of accused Lala Ram had been raided in which large number of incriminating slips, diaries, note books etc.. were seized.
171. According to Ld. Counsel for the accused accused Suresh Lata was a housewife and had no concern with the official business of MTNL. More over he claimed that the initial complaint which had been allegedly made by MTNL authorities to CBI was on piece of paper and not on letter head of MTNL. Ld. Counsel further submitted that PW-16 Govindrajan who was present during the time of search at Kidwai Bhawan did not name accused Suresh Lata as provider of telephone numbers. He further assailed evidence of handwriting expert and claimed that no reliance whatsoever could be placed on the report of handwriting expert and lastly it was submitted that accused had annoyed CBI officials. She had filed a suit seeking damages and that is why she CBI Vs. Lala Ram -131- had been implicated falsely.
172. I have given my considered thought to the submissions made by Ld. Counsel for the accused. So far as claim of Ld. Counsel is concerned that accused Suresh Lata has been implicated because of civil suit filed by her, I would submit that as per the photocopy of the certified copy of the civil suit, the same was taken up for hearing on 24.8.98 and was finally dismissed on 23.4.03. The said suit was against Union of India, Director CBI and I.O. Inspt. Azad Singh. Accused had sought damages as I.O. had flouted Sec. 160 of the Cr.P.C. Chargesheet in the present case had been filed on 20.11.98 i.e. in less than three months of filing of the civil suit by the accused. Filing of the chargesheet is a long drawn process. It cannot be done overnight. The matter could have been under active consideration since long and only thereafter it would have culminated in the chargesheet. Moreover till the time chargesheet had been filed by the CBI Vs. Lala Ram -132- accused , the I.O. and the other respondents namely CBI and Union of India had not been served in the Civil suit. So CBI could not have been even aware of filing of the said suit till the time it filed the charge sheet.
173. In case titled as Alamgir Vs. State (2003) 1 SCC 21 Hon'ble Supreme Court relied upon Murari Lal Vs. State of Madhya Prdesh. In Murari Lal's case Hon'ble Supreme Court had held that Court can act upon uncorroborted testimony of an handwriting expert and there were no inflexible rules in the matter. Even as per Sec. 73 of the Evidence Act, Court can direct any person who is present in the Court to write few words and Court can itself make comparisons.
174. In the case in hand at the time of raid at her house, documents were seized. The large number of them were alleged to be in handwriting of accused Suresh Lata. Handwriting expert Dr. N.C. Sood gave his opinion that CBI Vs. Lala Ram -133- questioned handwritings of accused Suresh Lata matched with specimen handwriting samples given by her which were S-130 to S-148 Ex. PW5/B1 to PW5/B19 and S-358 to S-402 which were Ex. PW34/BK. Witness was cross examined but nothing material emerged which could shake his testimony.
175. This leads us to the conclusion that indeed those questioned writings which were telephone numbers and names were written by accused Suresh Lata. This leads to further inference that she was party to the nefarious activities being conducted. Had she not been a party to all this, there was no occasion as to why documents in her handwritings would have been recovered at all.
176. There would hardly be any case where direct evidence of money changing hands would be available. In cases of criminal conspiracy Court has to draw inference CBI Vs. Lala Ram -134- from the circumstances and facts of the case. Thus I find force in the submissions of the CBI that accused Suresh Lata used to receive telephone calls at her residence from the people who wanted to make outstation and ISD calls. She used to note down their telephone numbers and used to forward them to the regular mazdoor on duty. Prosecution thus has been successful in establishing its case against accused Suresh Lata that she had entered into criminal conspiracy and assisted other co-accused to make STD/ISD calls illegally and in this process she and other accused cheated MTNL to the tune of Rs. 67,20,000/-
177. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About CBI Vs. Lala Ram -135- 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls.
178. In view of the evidence already on record, it stands established that accused Suresh Lata indeed had entered into criminal conspiracy with her husband and others to cheat the MTNL department. She was an active participant in the activities and was instrumental in causing loss to the tune of Rs. 67,20,000/-. I, therefore, convict accused Suresh Lata U/s 120-B r/w 420 IPC and also 13(2) r/w 13(1) (d) of Prevention of Corruption Act and also for substantive offence punishable U/s 420 IPC.
CBI Vs. Lala Ram -136- S.P. Grover
179. Accused S.P. Grover was alleged to have entered into criminal conspiracy with other conspirators. They allegedly installed multi frequency tester on 7th floor of Kidwai Bharwan to divert ISD/STD channel to telephone No. 3316826. He also allegedly used to contact exporters and other private persons offering them STD & ISD calls at cheap rates and thus thereby cheated MTNL to the tune of Rs.6720000/-. He also intentionally deviate/tampered with STD/ISD circuit on the 3rd floor at Kidwai Bhawan and used it for making illegal unauthorized calls and committed offence u/s. 25 /27 of Indian Telegraph Act and lastly he was charged to have committed acts of dishonesty and abusing of official position and thereby committed offence punishable u/s. 13(2) r/w Sec. 13(1) (d) of P.C. Act.
180. Prosecution examined Sh. N.K. Maithani PW4 CBI Vs. Lala Ram -137- in support of its case. He testified that accused S.P. Grover had given specimen handwriting samples which were Ex.PW4/A-1 to PW4/A-5. PW25 P.S. Saran testified about the sanction order which was Ex.P25/A. He deposed that he had granted sanction to prosecute accused S.P. Grover after perusing the material produced before him. PW36 Subhash Chand was General Manager of BSNL . HE deposed that in 1994 he was posted as Regional Manager Transmission Maintenance. On 05.01.94 he visited junction coaxial station 7th floor at about 9 am. CBI team along with MTNL vigilance team was already over there. At that time Janpath Digital Coaxial Station was working. There were two analogue coaxial system working from Janpath to Faridabad and Ghaziabad though they had been closed in 1992-93. Digital coaxial systems for connecting local telephone exchanges at Delhi and Faridabad were to be dismantled. The cable leading to the exchange from those wire bays had already been disconnected. One instrument was CBI Vs. Lala Ram -138- lying connected with two wire bay and four wire bay. He then deposed that accused S. P. Grover was posted as JE Junction Coaxial while Lala Ram, Mahenderpal and Sreepal were JTOs. He claimed that accused S.P. Grover was directly responsible for supervising and maintenance of coaxial station.
181. Upon being cross-examined he claimed that no talks from that place to foreign country could take place from the instruments installed in coaxial station. He then corrected himself and stated that he could not say whether it was not feasible to make telephone calls to a foreign country from the spot with the instruments lying over there. IO Inspector Azad Singh deposed about arrest and interrogation of the accused.
182. Learned counsel for the accused argued that there was no concrete evidence to show that MTNL had been cheated of Rs.67,20,000/-. It is true that there is no CBI Vs. Lala Ram -139- such material on the court record but IO in his cross- examination claimed that accused persons used to charge between Rs.125-Rs.150 per call. CBI rounded off the figure to Rs.100/- per call and multiplied with the telephone numbers which had been recovered. Approximately 1400 STD calls were made during the month as per the diaries and other documents recovered from the house of Lala Ram. Multiplying it by Rs. 100/-, the figure comes to Rs.1,40,000/- per month and multiplied it by four years, it comes to Rs.6720000/-.
183. To my mind it is reasonable as otherwise there was absolutely no way to estimate the loss because there could not have been any receipt of the money changing hands for illegal telephone calls.
184. Learned counsel further submitted that there was contradiction in testimony of PW10 and PW6. While PW10 had deposed that STD circuits for various CBI Vs. Lala Ram -140- stations within the country were opened and maintained by their section. He had further deposed that circuit of Guwahati was connected to SPC (Tax) Exchange. From these circuits local, STD and international calls could be made. For making international calls multi frequency tester was required. On the other hand PW36 Subhash Chand had claimed that multi frequency tester was lying in coaxial junction. In his cross-examination he had claimed that no talks to foreign country could be made from the instrument in the coaxial station. I would submit that he had again stated that he could not say whether it was not feasible to make telephone call to a foreign country from the instrument lying at the spot.
185. Learned counsel further submitted that there was nothing to indicate that accused S.P. Grover and Lala Ram, were in contact with each other. So, that would show that accused S.P. Grover was not part of the conspiracy. He submitted that no document bearing his CBI Vs. Lala Ram -141- hand writing was found during investigation. He claimed further that accused S.P. Grover was implicated merely because he was incharge of the place. He claimed that IO had also admitted that nobody had provided any incriminating document against accused S. P. Grover. Further he claimed that accused had a cabin which was accessible to all and sundry and moreover he had to supervise four places so he could not be blamed for mischief at Kidwai Bhawan. I agree with contention of learned counsel that merely because S.P. Grover was incharge of the place would not automatically make him an accused. It is not sufficient to prosecute him.
186. Learned counsel for the accused relied upon large number of judgments of Hon'ble High Court and Supreme Court. He stated that there was no conspiracy and at least accused S.P. Grover was not part of it. He relied upon case of Kehar Singh Vs. State : (1988) 3 SCC 609. I have gone through the same. Learned CBI Vs. Lala Ram -142- counsel further relied upon case titled as Sharad Birdi Chand Sharda Vs. State of Maharashtra : 1984 Crl. L. J. 1738 and V.C. Shukla Vs. State : 1980 SCC 665. In Sharad Birdi Chand Sharda's case Hon'ble Apex Court had laid down five golden principles which were the panchsheel of the proof of a case based on circumstantial evidence. I would submit that facts of Kehar Singh Vs. State of Delhi Administration and the case in hand are entirely different. In V.C. Shukla's case Hon'ble Apex Court had held that it would be difficult to get direct evidence of agreement to conspire but conspiracy can be inferred from the circumstances. Circumstances of two cases can never be identical. Conditions laid down by Hon'ble Apex Court in Sharad's case are fully established in the case in hand. If accused S.P. Grover was not part of larger conspiracy then there would have been no occasion for finding of slips bearing telephone numbers in his handwriting from the house of accused Lala Ram.
CBI Vs. Lala Ram -143-
187. Ld. Counsel for the accused also relied upon case titled as O.P. Barlia Vs. UTI: AIR 1983 Bombay 1, Zena Sorabji Vs. Mira Belle Hotel's: AIR 1981 Bomay 446 wherein Bombay High Court had held that ledger consisting of bundle of sheets separable cannot be treated as a book of account. He also relied upon Sir Mohd Yusuf Vs. D: AIR 1968 Bombay 112 wherein it was held that even if entire document is held to be formally proved it does not amount to proof of truth of contents of the documents. Hon'ble Court had further held that entries in a diary maintained in Solicitor's office amounts to contemporaneous record maintained in ordinary course of business and that can be admissible U/s 32 of the Evidence Act. The Hon'ble Court further held that it can also become admissible U/s 157 as corroborative factor to other evidence and lastly he relied upon judgment delivered by our own High Court in case titled as L.K. Advani Vs. CBI: 1997 CCR pg. 35 . Hon'ble Delhi High Court had held that entries in books of account by CBI Vs. Lala Ram -144- themselves were not sufficient to fasten liability on any person. They were not substantive piece of evidence. However they can be used only by way of corroboration to other piece of evidence. So according to Ld. Counsel no reliance whatsoever could be placed on recovery of slip bearing telephone numbers in the handwriting of accused S.P. Grover which was recovered from the house of Lala Ram. The Hon'ble Judge had clearly held that entries would be relevant and admissible if they are made in books of account and the said book is regularly kept in course of business. He dealt with the term " book of account".
188. Books of account are for recording sale and purchase and other like transactions. They also should stand for legal business and not illegal activities. In the case in hand, the slips seized from the house of Lala Ram cannot be equated with books of account. They are merely details of phone calls made or to be made CBI Vs. Lala Ram -145- illegally. They do not contain any money transactions or debit/credit entry. As per Section 34 books of account are those books which are kept in regular course of business. The diaries, notebooks and slips seized from the house of Lala Ram merely indicate the telephone numbers which were dialed or which were to be dialled. They were not books of account. In L.K. Advani's case his lordship had held that there was no evidence on record to show factum of conspiracy between Jain and Shukla and Advani except for the entries in the diary. Facts of the case in hand are different. As per PW-21 S.C. Duggal, telephone of kingpin Lala Ram was kept under observation. During raid at his residence calls were received which were duly recorded in a document and many of the callers wanted to make calls to other countries. Even co-accused Gulshan Kumar had twice rang up house of Lala Ram and provided local numbers for making ISD calls (Ex.PW20/B). One would hardly come across a better proof of conspiracy than the one CBI Vs. Lala Ram -146- which is available. Ld. Counsel finally relied upon case of Magan Bihari Lal Vs. State of Punjab 1977 Crl. L. J. 717 wherein Hon'ble Apex Court had held that it was unsafe to convict a person solely on the basis of expert opinion. I would submit that in a later decision in case titled as Murari Lal Vs State of Madhya Pradesh (1980) 1 SCC 704 Hon'ble Supreme Court had held that in case reason for opinion were convincing and there was no reliable evidence throwing a doubt, uncorroborated testimony of an handwriting expert can be accepted. There were no inflexible rules in the matter. The said judgment was followed in Alamgir Vs. State (2003) 1 SCC 21. In the case in hand we find corroboration from the fact that phone of Lala Ram was kept under observation and witness deposed about payments made to Lala Ram for illegal calls. Ld. Counsel wanted the Court to believe that accused S.P. Grover had been framed unnecessarily. He was looking after 4 places and so he could not be blamed for the acts being conducted at CBI Vs. Lala Ram -147- coaxial junction.
189. But things are not that simple as they have been made out to be. Parchis, notebooks and diaries had been found during search at the house of accused Lala Ram. The said parchis allegedly were in the handwriting of S. P. Grover.
190. PW4 N.K. Maithani had deposed that accused S.P. Grover had given specimen handwriting samples which were Ex.PW4/A-1 to A-5. They were S-79 to S- 83, S-263 to S-291. PW 5 J.C. Sharma also deposed about specimen handwriting and signatures being given by accused S.P. Grover. They were Ex.PW5/D-1 to D-8. IO Inspector Azad Singh also deposed about handwriting samples which were Ex.PW34/BM. They were S-284 to S-291 and S-263 to S-283. IO had seized admitted documents by virtue of memo Ex.PW34/AQ. They were A-10 to A-15 and were exhibited as Ex.PW34/AV.
CBI Vs. Lala Ram -148-
191. During course of house search of accused Lala Ram document D-13 which were Ex.PW34/V were seized. They were questioned document 1128 to 1129. Handwriting expert gave his opinion Ex.PW37/A. According to handwriting expert all these documents were in the same handwriting. In other words S.P. Grover was the author of those documents which had been seized from the house of accused Lala Ram.
192. Had accused S.P. Grover not been party to these activities, documents in his handwriting would not have been recovered from the house of accused Lala Ram. This leads the court to only one inference and that is he was a co-conspirator in the conspiracy and had performed his part well. Prosecution thus has been successful in making out its case against the accused S.P. Grover and I hold that he along with co-conspirators had been providing STD/ISD facility unauthorizedly to private persons with the help of regular mazdoors. It is CBI Vs. Lala Ram -149- also established that he and other co-conspirators cheated MTNL to the tune of Rs. 67,20,000/-. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls. However there is nothing on record to indicate that he himself had damaged or tampered with STD/ISD circuits. He is thus convicted U/s. 120-B r/w U/s 420 IPC and U/s 13(2) r/w 13(1) (d) of P.C. Act 1988 and for substantive offence punishable U/s. 420 IPC. Since he was an employee of CBI Vs. Lala Ram -150- MTNL and a public servant, he abused his position and also stands convicted U/s 13(2) r/w 13(1)(d) of P.C. Act.
GULSHAN RAI
193. The Charge against the accused was that he conspired with other co-accused and illegally installed a multi frequency tester on the 7th floor of Kidwai Bhawan and used to contact private parties offering them illegal and unauthorized STD/ISD calls at cheaper rates. The calls used to be facilitated through regular mazdoors. In this manner he had cheated MTNL to the tune of Rs. 67,20,000/-. He has also charged to have intentionally damaged/tampered with STD/ISD circuits. Since he was a public servant and had abused his position, he also allegedly committed offence under under Prevention of Corruption Act.
194. Prosecution in support of its case examined CBI Vs. Lala Ram -151- PW-3 R.K.Ochani. Mr. Ochani testified that he was working as SDO Telex. Accused Gulshan Rai was posted as Junior Telecom Officer under him. He was familiar with his handwriting and signatures. He deposed that he handed over leave application and other documents written by accused Gulashan kumar to the CBI. The said documents were Ex. PW3/B1 to PW3/B16.
195. PW-5 examined by the prosecution was Mr. J.C. Sharma. He deposed that accused Gulshan Kumar had given specimen writings and signatures to the I.O. in his presence. The said documents were Ex. PW5/C1 to C18 and PW5/C19 to C34.
196. PW-7 was Mr. Suraj Prakash. He too had witnessed specimen handwriting and signatures of accused Gulshan Rai. The same were EX. PW5/C1 to C18.
CBI Vs. Lala Ram -152-
197. PW-14 Sh. Bhagwan Bhairwani deposed that in 1994 he used to export garments in the name and style of Globe Overseas Trading Corporation. He deposed that a gentleman posing himself to be Mr. Mehta telephoned him at his factory and offered him overseas calls at cheaper rates. After bargaining, the rate was settled at Rs.125/- per call without any time limit. He claimed that he made calls to Spain. Mr. Mehta used to call him regularly and asked him about his requirement of overseas calls. He used to pay agreed amount of Rs. 100- 125 per call to one Mehta or to a child. The witness thereafter pointed out accused Gulshan Kumar in the Court and stated that he used to pose as Mr. Mehta.
198. PW-25 P.S. Saran deposed that he was member Services Telecome Commission. He had granted sanction for prosecution of accused Gulshan Rai. The said order was Ex. PW25/B. CBI Vs. Lala Ram -153-
199. I have heard both Ld. PP Mr. Praneet Sharma and Ld. Counsel for the accused Gulshan Rai very extensively. Ld. Counsel for the accused Gulshan Rai relied upon 9 or 10 judgments. Mr. S.P. Ahluwalia Adv. was representing accused Gulshan Rai as well as accused S.P. Grover. I have already discussed those judgments while discussing case of accused S.P. Grover. Discussing them a fresh now would be simply a repetition and hence I am skipping them.
200. Learned counsel for the accused further argued that accused who was JTO was never posted in Kidwai Bhawan. He further submitted that according to testimony of PW14 somebody who introduced himself as Mehta used to telephone PW14. As per his requirement he used to get calls connected to Spain. According to learned counsel, accused Gulshan Rai was posted in Naraina and so there was no way in which he could get CBI Vs. Lala Ram -154- calls connected through Kidwai Bhawan. Moreover, according to learned counsel PW14 had identified accused Gulshan Rai as the person who contacted him under assumed name of Mehta. He submitted that no test identification parade had been got conducted by CBI and so identification in court was of no use. He relied upon 1983 (1) Supreme Court Cases 143 and AIR 1979 SC 1127.
201. I have gone through the said judgments. Indeed Hon'ble Supreme Court had held that identification in Court is worth less.
202. In a later decision in case titled as Sidhartha Vashisht @ Manu Sharma Vs. State 2010 IV AD (S.C.) 441, Hon'ble Apex Court discussed large number of previous judgments. In Munshi Singh Gautam Vs. State of M.P. (2005) 9 SCC 631, Hon'ble Court had held that failure to hold a test identification parade would not CBI Vs. Lala Ram -155- make inadmissible the evidence of identification in Court. Hon'ble Court also referred to case of Harbhanjan Singh Vs. State of J&K (1975) 4 SCC 480 wherein it had held that it found no substance in the argument that investigation officer ought to have held test identification parade. It further referred to Malkhan Singh Vs. State of M.P. (2003) 5 SCC 746. Again in the said case it was held that test identification parade was an exercise of investigation and there was nothing in Cr.P.C. which cast duty on I.O. to hold test identification parade. Failure to hold test identification parade would not make inadmissible the evidence of identification in Court. So Hon'ble Supreme Court in Sidhartha Vashisht's case had held that even where no previous test identification parade had been conducted, Court can appreciate dock identification as being above board and more than conclusive.
203. PW Bhagwan Bhairwani had identified accused CBI Vs. Lala Ram -156- Gulshan Kumar in Court as the person who used to pose as Mehta and provide him with cheap calls. PW14 who had identified Gulshan Rai as Mehta in court was not even given suggestion that Gulshan Rai present in the court was not Mehta.
204. I, therefore, hold that indeed it was accused Gulshan Rai who posed as Mehta and provided illegal facilities to Bhagwan Bhairwani. In addition to it, there is other material against the accused which compels me not to discard identification in the Court by PW Bhagwan Bhairwani. While house of accused Lala Ram was being searched during course of raid, around 30 telephone calls were received at his residence. People were requesting Lala Ram for providing illegal calls. They were duly recorded by the team officials and memo Ex. PW20/B was prepared. Amongst those 30 calls, accused Gulshan Rai rang up twice. The first call was at 7.55 pm and the second call was at 8.55 pm. He made two calls CBI Vs. Lala Ram -157- requesting for urgent connections. What better proof of his involvement in the racket can be there. From the house of accused Lala Ram a good number of slips, notebooks and diaries were recovered. They all contained telephone numbers. The documents pertaining to accused Gulshan Rai were Q-2250, 2251, 2252, Q-1619 to Q- 1644. They were Ex. PW34/AJ. I.O. had also seized admitted writings which were A-68 to A-83. They were Ex. PW3/A. The documents were Ex. PW3/B1 to PW3/B16. I.O. had collected specimen writings and signatures of the accused in presence of independent witness. They were S-175 to 185. they were Ex. PW5/C1 to PW5/C6. S-183 to 192. They were Ex. PW5/C7 to PW5/C18. S-473 to 487. They were Ex. PW5/C19 to PW5/34. All these documents were sent to handwriting expert for his opinion. Handwriting expert in his opinion Ex. PW37/A stated that all these writings, questioned, specimen and admitted were in the same hand. In other words accused Gulshan Rai was the author of some of the CBI Vs. Lala Ram -158- documents containing telephone numbers which were found during raid at the house of accused Lala Ram . Had he not been a party to this activities, there would have no occasion for finding of questioned documents at the house of accused Lala Ram.
205. Lastly Learned counsel had also submitted that there are many Gulshans working in MTNL. It is true that there were many Gulshans working in MTNL. But handwriting sample of accused Gulshan Rai who is facing trial in the court were taken. The said samples had been considered by handwriting expert and he gave his opinion that sample handwriting of Gulshan perfectly matched with the documents seized. So, it has to be Gulshan Rai who is facing trial in the court and no other Gulshan.
206. I am therefore, of the opinion that prosecution has been successful in making out its case against CBI Vs. Lala Ram -159- accused Gulshan Rai that he was a co-conspirator and had participated in the illegal activities and had provided cheap STD/ISD facilities to public persons. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls.
207. However there is nothing on record to indicate that he himself had damaged or tampered with STD/ISD circuits. He is thus convicted U/s. 120-B r/w Sec. 420 CBI Vs. Lala Ram -160- IPC and U/s 13(2) r/w 13(1) (d) of P.C. Act 1988 and also for the substantive offence punishable U/s 420 IPC. Since he was an employee of MTNL and a public servant, he abused his position and also stands convicted U/s 13(2) r/w 13(1)(d) of P.C. Act.
Sobhraj Jaisinghania
208. CBI has examined two witnesses in support of its case in addition to I.O. against the accused Sobhraj Jaisinghania. PW-1 Mann Singh had testified that on 07.1.04 he had gone to CBI office. He was introduced to accused Lala Ram in the CBI office and was called to accompany him and other team members. He was asked to pose as Junior Engineer in MTNL and collect money from STD booth owners which was being collected by accused Lala Ram. The witness further claimed that he went to Naraina Industrial Area. They visited a garment factory. Accused Lala Ram told the owner of the garment factory that he has been transferred and he (factory owner) should pay him Rs. 300/- which was CBI Vs. Lala Ram -161- outstanding. He further told him that in future the money be paid to him (PW1 Mann Singh). Thereafter CBI officer entered the factory. The witness pointed out to accused Sobhraj Jaisinghania as the person who had paid Rs. 300/- to accused Lala Ram. Recovery memo prepared was Ex. PW1/A. The team thereafter went to Kirti Nagar for effecting recovery from some other persons with whom we are not immediately concerned. The witness deposed that GC notes which had been handed over by accused Jaisinghania to accused Lala Ram were R-5, R-6 & R-7.
209. PW-13 examined by CBI was B.D. Sharma, Supervisor from Tis Hazari Telephone Exchange. He deposed about telephone no. 2923354 which was registered in the name of Smt. Kanta Jaisinghania wife of accused.
210. PW-34 I.O. of the case Inspt. Azad Singh also CBI Vs. Lala Ram -162- testified to the effect that accused Lala Ram had led the CBI team to the premises of accused Sobhraj Jaisinghania and had received Rs. 300/- from him towards unauthorized STD/ISD calls.
211. Ld. Counsel for the accused merely gave suggestion to the I.O. that no recovery of Rs. 300/- had been effected from accused Lala Ram. The I.O. further denied the suggestion that he had planted Rs. 300/- from his own pocket.
212. It would be relevant to mention that Ld. advocate for the accused Sobhraj Jaisinghania did not avail opportunity to cross examine PW-1 in whose presence accused Sobhraj Jaisinghania had made payment to accused Lala Ram.
213. Ld. Counsel for the accused submitted that I.O. in his cross examination had admitted that since money CBI Vs. Lala Ram -163- had been recovered from accused Jaisinghania, he had been made an accused whereas no recovery had been effected from PW Bhagwan Bhairwani and so he had been made a witness. He further argued that I.O. had stated that Rs. 300/- was recovered from accused Sobhraj Jai Singhania. It was not factually correct.
214. Indeed money had been paid by the accused Jai Singhania to accused Lala Ram. It had actually been recovered from accused Lala Ram. Recovery memo Ex. PW1/A is very clear in this regard. PW-1 was a total outsider. He did not belong to MTNL. He was an independent witness. There is no reason to doubt his testimony. In his evidence he gave complete story. He further admitted that he had signed the documents after going through them.
215. Thus it stands established that indeed accused Sobhraj Jaisinghania had paid Rs. 300/- to accused Lala CBI Vs. Lala Ram -164- Ram towards ISD calls which he had made in past. So prosecution had been successful in establishing its case against the accused Sobhraj Jaisinghania that he had entered into criminal conspiracy with the remaining accused and had made illegal unauthorized ISD calls. It also stands established that he had paid Rs. 300/- to accused Lala Ram. It further stand established that accused had cheated MTNL by making illegal unauthorized ISD calls. It is also established that he and other co-conspirators cheated MTNL to the tune of Rs. 67,20,000/-. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it CBI Vs. Lala Ram -165- comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls. I, therefore, convict him U/s 120-B r/w 420 IPC and also 13(2) r/w 13(1) (d) of Prevention of Corruption Act and also for substantive offence punishable U/s 420 IPC for having entered into criminal conspiracy with his co-accused and had cheated MTNL to the tune of Rs. 67,20,000/-.
A.K. Bhardwaj
216. Allegations in the charge sheet against the accused A.K. Bhardwaj were that he had conspired with other co-accused to provide unauthorized STD and ISD calls to people. He used to contact parties and also offer them services. He also used to collect money for the said calls and as he was a public servant he is allegedly committed offence punishable U/s 13(2) r/w 13(1)(d) of the P.C. Act and Sec. 420 IPC.
CBI Vs. Lala Ram -166-
217. CBI examined three witnesses in addition to the I.O. against the accused. R.K. Lamba PW-11 testified that he was working as a foreman in DTC. On directions of his depot manager he attended CBI office on 08.8.95. Accused A.K. Bhardwaj was also sitting in the office. He gave his handwriting samples running into 19 pages Same were Ex. PW11/A-1 to PW11/A-19. They were S- 517 to S-535.
218. PW-22 examined by CBI was Mr. R.S. Yadav. He too was posted with DTC. He had handed over some documents like leave application, application for appointment, property declaration etc.. filed by Ajay Bhardwaj in his office. They were seized by the CBI vide memo Ex. PW22/A. The said documents were Ex. PW22/B-1 to PW/B-35.
219. During raid at the house of accused Lala Ram,a CBI Vs. Lala Ram -167- diary was seized. The diary allegedly contained handwriting of accused A.K. Bhardwaj. The same was Ex. PW20/L. Questioned handwritings were Q-1905 and Q-1906. Handwriting expert in his opinion said that the person who wrote Ex. S-517 to S-535 had also written Q- 1905 and 1906.
220. In case titled as Murari Lal Vs. State of Madhya Pradesh 1980 (1) SCC 704 My Lord Mr. Justice R.S. Sarkaria and My Lord Mr. Justice O. Chinnappa Reddy had held that even uncorroborated testimony of handwriting expert can be accepted. There were no inflexible rule on the matter. So it stands established that the diary which contained handwriting of the accused A.K. Bhardwaj was found in the house of accused Lala Ram during search.
221. According to Ld. Counsel for the accused, CBI had not examined any witness who had testified that CBI Vs. Lala Ram -168- accused had taken any money from him or contacted him for making illegal calls.
222. It is true that no such witness has been examined by the CBI but we must not look at it in isolation. We should keep wider canvas insight. The entire racket was being run by the kingpin Lala Ram. It is a settled law that there hardly can be direct evidence of conspiracy. Court has to infer from circumstances of each individual case. This was so held in AIR 1964 SC 1184; .
223. In case titled as S.L.Joshi Vs. State of Maharashtra 1980 Crl. Law. Journal my Lord Mr. Justice M.F. Ali and A.P. Sen held:
" It is manifest that a conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence of the same. The offence can be only proved largely from the CBI Vs. Lala Ram -169- inferences drawn from acts or illegal omission committed by the conspirators in pursuance of a common design which have been amply proved by the prosecution as found as fact by the High Court".
224. Hon'ble Supreme Court had an occasion to deal with concept of conspiracy in case titled as CBI Vs. Nalini, Manu SC 0945/1999. My Lord. Mr. Justice D.P. Wadhwa and Mr. Justice S.S. Mohd. Quadri discussed large number of judgments delivered by Hon'ble Apex Court in the past. It referred to case titled as Sardar Sardool Singh Vs. State of Maharashtra Manu SC 0063/1963. Hon'ble Supreme Court had held therein that the agreement between conspirators could be proved by direct evidence or it may be inferred from Acts and conduct of the parties.
CBI Vs. Lala Ram -170-
225. Hon'ble Court further referred to case titled as Shiv Narain Laxmi Narain Joshi & Ors Vs. State of Maharashtra. In the said case Hon'ble Apex Court had held that conspiracy is always hatched in secrecy and it is impossible to adduce direct evidence for the same.
226. Hon'ble Court also discussed case of Ajay Aggarwal Vs. U.O.I. Manu/SC/0265/1993 wherein it was held that it was not necessary that each conspirator must know all the details of the scheme nor his participation at every stage was necessary.
227. After discussing host of other decisions, Hon'ble Court held:
" The agreement, since qua non of conspiracy, may be proved either by direct evidence which is rarely available in such cases or it may be inferred from utterances, CBI Vs. Lala Ram -171- writings, acts ommissions and conduct of the parties to the conspiracy which is usually done. In view of Section 10 of the Evidence Act anything said, done or written by those who enlist their support to the object of conspiracy and those who join later or make their exit before completion of the object in furtherance of their common intention will be relevant facts to rove that each one of them can justifiably be treated as a conspirator.
Thereafter it also held:
" To apply this provision, it has to be shown that (1) there is reasonable ground to believe that two or more persons have conspired together; and (2) the conspiracy is to commit an offence or an actionable wrong. If these two requirements are satisfied then anything said, done or written by any one o CBI Vs. Lala Ram -172- such persons after the time when such intention was entertained by any one of them in furtherance of their common intention, is a relevant fact against each of the persons believed to be so conspiring as well as for the purpose of proving the existence of conspiracy and also for the purpose of showing th at any such person is a party to it."
228. Coming back to the facts of the case in hand, if there was no illegal dealings between accused A.K. Bhardwaj and accused Lala Ram then there was no occasion for the diary in handwriting of accused A.K. Bhardwaj to be lying in the house of accused Lala Ram. The said diary contained hundreds of telephone numbers. It had no business to be found in the house of accused Lala Ram. It goes to show that indeed the accused had conspired with others to run the racket of providing CBI Vs. Lala Ram -173- illegal STD/ISD calls and the diary recovered from the house of accused Lala Ram bearing telephone numbers in his handwriting indicate that the said numbers had been illegally dialled.
229. Lastly it was argued that as per Section 34 of the Indian Evidence Act, entries in books of account are relevant but they are not sufficient to charge any person with liability.
230. Ld. Counsel relied upon judgment delivered by Hon'ble Delhi High Court in case titled as L.K. Advani Vs. CBI 1997 (CCR) pg. 35. My Lord Mr. Justice Mohd Shamim in the above case held :
Section 34 of the Evidence Act deals with entries in books of account and when the same would be relevant. It envisages "Entries in books of account regularly kept in the course of business are relevant whenever they refer to a CBI Vs. Lala Ram -174- matter into which the Court has to enquire but such statement shall not alone be sufficient evidence to charge any person with liability"
Thus to make the entries relevant and admissible under Section 34 of the Evidence Act it must be shown : (a) that the said entries are in books of account; (b) the said books of account are being regularly kept in the course of business; C) the said entries alone be not sufficient enough to charge any person with liability. Thus as per the requirement of law the prosecution in order to make the entries in the said diaries and the loose sheets admissible in evidence must show that the same fall within the ambit of an account book within the meaning of Section 34 of the Evidence Act. "
231. His lordship made it very clear that in order to CBI Vs. Lala Ram -175- make entries relevant and admissible U/s 34 of the Evidence Act, entries must be in the book of account and the said book must be regularly kept in the course of business. Further my lord dealt with the term "book of account". He held:
The term 'book of account' has been defined in words & Phrases, Permanent Edn. Vol. VA at page 185. " A book of account is a record of sales or other transactions involving credits and debts, and a book containing minutes of cash paid, only, is not properly a book of account." A diary is not admissible in evidence under the rule admitting books which are used in the regular course of business and kept by the party as 'books of account'"
232. So according to the above judgment books of CBI Vs. Lala Ram -176- account is record of sale and other transactions involving credits or debits. Moreover the word "books" in Section 34 stands for a legal business. It cannot be used for illegal business.
233. Coming back to the case in hand, the diary which was seized does not qualify as a "books of account". It was not to record any monetary transactions or debits or credits. They were simply used to record telephone numbers which were dialled illegally and unauthorizedly by the accused persons in pursuance of the larger conspiracy.
234. In the above cited cases Hon'ble Judge had held that there was no evidence on record to show factum of conspiracy between Mr. Advani & Mr. Jain and Mr. Shukla & Mr. Jain except for the entires in the diary. But in the case with us this is not the position. In this case as per PW21 H.C. Duggal telephone of Lala Ram was kept CBI Vs. Lala Ram -177- under observation. During raid at his residence calls were received which were duly recorded in Ex.PW20/B. Many of the callers wanted to make ISD calls to USA, Singapore etc. It would be worthwhile to mention that in the short span of time while raid was in progress accused Gulshan Kumar rang up accused Lala Ram two times and provided local numbers to be dialed. Testimony of PW31 Rai Singh Khatri is also to the same effect. What better proof of conspiracy would be needed.
235. In addition to I.O. prosecution had examined PW-29 who was Mr. Raguraj Singh. As the accused Ajay Kumar Bhardwaj was employee of D.T.C. Mr. Raghuraj Singh had granted sanction for his prosecution. The same was Ex. PW29/A.
236. Thus to sum up I hold that prosecution has been successful in making out its case against accused A.K. Bhardwaj. It stands established that he entered into CBI Vs. Lala Ram -178- criminal conspiracy with co-accused to provide STD/ISD facility to public at cheaper rates in an illegal manner. It further stands established that in pursuance of the said criminal conspiracy he cheated MTNL and got done unauthorized unmetered STD/ISD calls. It is also established that he and other co-conspirators cheated MTNL to the tune of Rs. 67,20,000/-. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls and as he was a CBI Vs. Lala Ram -179- public servant in terms of Section 2(C) of the Prevention of Corruption Act, I hold him guilty U/s 120-B r/w Sec. 420 IPC and also 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, and also for substantive offence punishable U/s 420 IPC and also U/s 13 (2) r/w 13(1) (d) of Prevention of Corruption Act, since he was an employee of DTC and thus a public servant and had abused his position.
Amarnath
237. Charges against accused Amarnath was that he was a regular mazdoor working in MTNL. He conspired with co-accused and illegally installed multi frequency signal tester on the 7th floor of the Kidwai Bhawan and used to mature illegal STD/ISD calls to private persons. He used to assist other conspirators namely Lala Ram and his wife Suresh Lata in their illegal activities of providing illegal and unauthorized STD/ISD calls. Other charge against the accused Amarnath was that he had cheated CBI Vs. Lala Ram -180- MTNL along with other co-accused to the tune of 67,20,000/- by facilitating unauthorized unmetered STD calls. Further charge that he had intentionally damaged//tampered with STD/ISD circuits on the 3rd floor of the Kidwai Bhawan and illegally diverted it to the 7th floor of the same building for making illegal calls and lastly he was alleged to have abused his official position being a government servant and thus committed offence U/s 13(2) r/w Sec. 13(1) (d) of P.C. Act.
238. CBI in support of its case examined PW2 Sh. Ram Gopal. He testified that in 1995 he was posted as JTO in Coaxial Junction, 7th Floor Kidwai Bhawan. He had handed over duty attendance register pertaining to accused Amarnath and two more accused to the CBI officials. He also claimed to have attested specimen handwriting of accused Amarnath which were Ex.PW2/B-1 to PW2/B-12.
CBI Vs. Lala Ram -181-
239. The next witness examined against the accused was PW26 Ajit Singh. He had granted sanction for prosecution of the accused which was Ex.PW26/A. IO Inspector Azad Singh had deposed that he too had obtained specimen handwriting samples of the accused which were S-403 to S-440 and the same were Ex.PW34/BE. He had further deposed that he had seized admitted writings pertaining to the accused vide memo Ex.PW34/AM from JTO Sh. Ram Gopal. The said admitted writings were Ex.PW34/AN.
240. Learned counsel for the accused advanced oral arguments. He also filed written submissions and relied upon few judgments of Hon'ble Apex Court. He argued that at the time of raid accused Amarnath was not present at coaxial junction. IO had also not examined or taken technical opinion. There were no details on record of Multi Frequency Signal Tester. However, he admitted that admitted writings Ex.PW34/AN were that of the CBI Vs. Lala Ram -182- accused. There was nothing to show that any money was being distributed as share between Lala Ram and Amarnath.
241. There is no doubt that accused was not caught at the time of raid at Kidwai Bhawan. Nevertheless his involvement in the racket stands established for other reasons.
242. Learned counsel for accused has relied upon judgment of Hon'ble Supreme court titled as Subash Parbat Sonvane Vs. State of Gujarat 2002(5) SCC 86. I have gone through the same but I failed to understand as to how this judgment is relevant to the facts of the case in hand.
243. Similarly, judgment V. Kannan Vs. State Represented by the Inspector of Police VII (2009) Supreme Laws Today pg. 1, is also not relevant to the CBI Vs. Lala Ram -183- facts of the case in hand. This is not a case wherein accused was caught while accepting the money.
244. Learned counsel for accused relied upon the other case titled as S.V.L. Murthy Vs. State Represented by CBI, Hyderabad 2009(2) SCC (Crl.) No. 941. Hon'ble Supreme Court had held therein that in absence of culpable intention no offence was made out u/s. 420 IPC. Facts of this case and the case in hand are totally different. It is settled law that prosecution has to establish mens reas and only then accused can be convicted. Mens reas has to be detected from circumstances of the case.
245. Learned counsel for the accused also relied upon case titled as Dr. Mukundakam Sharma Vs. State by Dy. Superintendent of Police, Madras. Hon'ble Supreme Court in the said case referred its earlier decision in the case titled as Murari Lal vs. State of CBI Vs. Lala Ram -184- Madhya Pradesh : air 1980 SC 531. Hon'ble Supreme Court had very categorically made it clear that there could not be any inflexible rule. There was no rule of law that opinion in evidence of handwriting expert should never be acted upon unless it is corroborated. Court should exercise caution while acting upon reports of handwriting expert.
246. Lastly, learned counsel for accused Amarnath relied upon Judgment in Radha Pisharassiar Amma Vs. State of Kerala 2009 (1) SCC (Crl.) page 200. Hon'ble Supreme Court in the said case held that there was no evidence to show that appellant had forged the documents and there was no evidence that appellant had knowledge of the fact that allotment letter was forged.
247. In the case in hand facts are entirely different. During course of raid at the house of Lala Ram certain documents were seized. The said documents were Q-
CBI Vs. Lala Ram -185- 1548 to Q-1563, Q-1563A, Q-1566 to Q-1581. They were Ex.PW34/Z (D-18). Admitted documents seized in the matter were A-40 to A-44, A-149 to A-155. They were Ex.PW34/AN. Specimen collected during course of investigation were S-149 to S-160, S-403 to S-440. They were Ex.PW2/B-1 to PW2/B-12 and PW34/BE. Handwriting expert gave his opinion that all the specimen handwritings and admitted writings perfectly matched with the questioned handwritings.
248. Learned counsel for the accused was put a query by the court as to how and under what circumstances documents in handwriting of accused Amarnath were found in the house of accused Lala Ram. To this query, he gave an answer that somebody had forged handwriting of accused Amarnath with a view to implicate him and had placed the documents in the house of accused Lala Ram. This simply is not acceptable. It is totally unconvincing explanation.
CBI Vs. Lala Ram -186-
249. Ld. Counsel for the accused had relied upon Ram Narain Popli Vs. CBI 2003 Crl. Law. Journal 4801. The majority view was followed by My Lord Mr. Justice Arijit Pasayat and My Lord Mr. Justice B.N. Aggarwal while My Lord Mr. Justice M.B. Shah was in minority. Their Lordships in majority view held:
The important ingredient of evidence of criminal conspiracy was agreement between two or more persons to do any illegal act. Court must be satisfied that two or more persons are pursuing the same end collectively. They should not be pursuing some end independently. Some kind of physical manifestation of agreement is required to be established. Their lordship further held that express agreement need not be proved. During its substance whatever one conspirator does he would be guilty U/s 120-B of the IPC.
250. Their Lordships had further observed that CBI Vs. Lala Ram -187- privacy and secrecy are mere characteristic of conspiracy than of a loud discussion in a public view. Direct evidence in proof of conspiracy is seldom available. Their lordship also were of the view that it was not possible always to give affirmative evidence about date of formation of criminal conspiracy and about the person who took part in the same.
251. Now coming back to the case in hand, one would rarely get direct evidence of conspiracy being hatched and booty being distributed. Court has to form its opinion on basis of circumstances. House of accused Lala Ram who was allegedly kingpin of the racket was raided. Large number of slips, notebooks and diaries which contained hundreds of telephone numbers were recovered. Some of those slips were in the handwriting of present accused Amarnath. This would indeed establish that he was part of the larger racket and had conspired with other co-accused to provide illegal CBI Vs. Lala Ram -188- telephone calls.
252. Thus recovery of documents which were in handwriting of accused Amarnath containing telephone numbers from the house of Lala Ram clearly go to show that he was part of larger conspiracy. In such like cases court cannot expect any direct evidence of money changing hands between co-accused or of accused providing list of telephone numbers to co-accused. I, therefore, hold that prosecution has been successful in establishing its case against accused Amarnath that he had entered into criminal conspiracy with other co- accused and used to mature illegal STD/ISD calls from coaxial junction and in this process he cheated MTNL to the tune of Rs.67,20,000/- with other co-accused. However, I do not find any material on record to conclude that he had damaged/tampered with STD/ISD circuit channel. I further hold him guilty of abusing his official position as a public servant.
CBI Vs. Lala Ram -189-
253. Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls. The prosecution has been successful in proving its case against the accused Amarnath. I thus convict him U/s 120-B r/w 420 IPC and also 13(2) r/w 13(1) (d) of Prevention of Corruption Act and also for substantive offence punishable U/s 420 IPC for having entered into criminal conspiracy with his co-
CBI Vs. Lala Ram -190- accused and had cheated MTNL to the tune of Rs. 67,20,000/-. Since he was a public servant being employee of MTNL he also stands convicted U/s 13(2) r/w 13(1) (d) of Prevention of Corruption Act.
R.B. Dubey
254. According to CBI accused R.B. Dubey was a Regular Majdoor. He used to mature illegal STD/ISD calls at the instance of other conspirators. In this process, he along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- by allowing illegal STD/ISD calls. He was also charged with having damaged/tampered STD/ISD circuit at the 3rd floor of Kidwai Bhawan and illegally diverted it to 7th floor of Kidwai Bhawan for making illegal unmetered calls and lastly, since he was a public servant, he abused his official position and thus committed offence under Prevention of Corruption Act.
255. CBI examined number of witnesses in support CBI Vs. Lala Ram -191- of its case against him. PW8 B.K. Jain testified that in 1994 he was working as JTO (Vigilance) in MTNL. On 05.01.94 he along with CBI team and independent witnesses went to Coaxial Junction at 7th floor of Kidwai Bhawan. They found accused R.B. Dubey on duty. R.B Dubey was carrying a slip which had been given to him by accused Lala Ram for purpose of making unauthorized ISD calls. The said slip was mark PW8/A. (Later on it was exhibited as Ex.PW16/A). It was recovered from the person of R.B. Dubey. During search of the Junction CBI team found a telephone instrument and multi frequency tester. They were seized. Accused R.B. Dubey was made to make a test call. The said call matured successfully.
256. PW4 N.K. Maithani witnessed the specimen writings given by accused R.B. Dubey. The said sheets were Ex.PW4/B1 to PW4/B5.
CBI Vs. Lala Ram -192-
257. PW16 S. Govind Rajan was also member of the raiding team at Kidwai Bhawan. He testified on the lines of version given by Sh. B. K. Jain. He deposed that accused R.B. Dubey was found present in the coaxial maintenance junction and from his personal search, slip containing telephone numbers, local and international, were recovered. Accused R.B. Dubey also gave demonstration by dialing a local number from the list which had been recovered from him. From the local party he obtained international number and connected the party. The entire conversation was heard by Sh. S.M. Aggarwal another independent witness through parallel line. Accused R.B. Dubey also confessed that he used to be paid Rs.10/- per call by accused Lala Ram.
258. PW19 Mr. S.K. Goyal testified that he was working as JTO (Vigilance). He joined the raiding team of CBI and went to Kidwai Bhawan. He deposed that accused R.B. Dubey was met and his personal search led CBI Vs. Lala Ram -193- to recovery of slip Ex.PW16/A. He further deposed that accused had disclosed that he used to be paid by accused Lala Ram for connecting international calls.
259. PW 24 Nathi Ram too was member of the CBI team which had raided coaxial maintenance junction at Kidwai Bhawan. HE deposed that they met accused R.B. Dubey and recovered papers from him.
260. PW30 S.K. Vats also was member of the raiding team. He too deposed that at the time of raid they met accused R.B. Dubey on duty. A paper slip was recovered from him on which some telephone numbers were written.
261. PW36 Subhash Chand also was member of the team. He too deposed that he found accused R.B. Dubey at the junction.
CBI Vs. Lala Ram -194-
262. IO Inspector Azad Singh too deposed about carrying out search at coaxial maintenance junction in presence of independent witnesses. He deposed that the team found accused R.B. Dubey on duty. A paper slip Ex.PW16/A was recovered from him. Accused R. B. Dubey also demonstrated a call which successfully matured. He then seized admitted writings pertaining to the accused. They were Mark A-31 to A-39. They were Ex.PW34/AW.
263. The specimen writings pertaining to accused R.B. Dubey were S-115, S-116, S-117, S-118, S-119 which were Ex.PW4/B1 to PW4/B5. Other specimen of the accused S-120 to S-129 were Ex.PW34/AH and S- 330 to S-357 were Ex.PW34/BJ. The documents seized were D-15. Questioned writings were Q-1375 to Q-1484 and were Ex.PW34/X. These documents had been seized from residence of accused Lala Ram and PW20 V.P. Badola had deposed about them. He was an independent CBI Vs. Lala Ram -195- witness working as Dy. Manager with MMTC and so we should not have any doubt regarding his deposition of recovery of documents.
264. Sh. Praneet Sharma, Ld. PP submitted that accused Dubey was arrested after raid was conducted on the 7th floor of Kidwai Bhawan. He was found in possession of a slip which contained telephone numbers. Accused Dubey then explained the modus operandi. A call was made to the number which was written on slip possessed by Dubey. The caller at the other end provided an international number 0015124530975. The call was made and it matured.
265. PW35 S.M. Aggarwal in his testimony claimed that he had heard the conversation which had taken place with the party in USA. The conversation continued for about half an hour. It was between husband and wife. The slip which was found in possession of Dubey was Ex.
CBI Vs. Lala Ram -196- PW16/A. Observation memo in this regard is Ex.PW8/B (D-35).
266. Learned counsel for the accused submitted that at the time of raid only R.B. Dubey was present in Kidwai Bhawan. He further submitted that instrument Ex.P-1 & P-2 were not capable of being used for making any international or domestic calls. He referred to statement of PW19. In his testimony it has come up that the witness used to impart training. The witness further admitted that he had no knowledge about working of Frequency Tester and he had nothing to say as to whether the instrument could not be used for making international telephone calls or it could be connected with two wire bay or four wire bay systems. PW36 Subhash Chand was General Manager, BSNL. He had deposed that he was a technical person and so was aware of working of Junction Coaxial Station. During his visits he did not see any illegal activity in the Junction Coaxial Station. He CBI Vs. Lala Ram -197- further stated that he had seen Multi Frequency Tester at the spot. If Multi Frequency Tester is defective, no conversation could take place through it. The words "Multi Frequency Signal Tester" were written on it. According to learned counsel for the accused Ex.P-2 carried the words "Dual Tone Tester". According to him it could not be used for making any call. He further submitted that chits/slips allegedly recovered could not be used against the accused. He relied upon judgment of case involving Sh. L. K. Advani, in his support. He also relied upon judgment of Hon'ble Supreme Court titled as Dadarao Vs. The State of Maharashtra wherein it was held that entries in books of account alone are not sufficient to charge any person with liability. There must be some more material before the court. He also relied upon case titled as M. Durga Prasad Vs. State of Andhra Pradesh : 2004 Cri. L. J. 242 wherein it was held that sample signatures obtained by CBI officials which were taken in court could not be used for comparing his CBI Vs. Lala Ram -198- handwriting. According to learned counsel for accused sample signatures of all the three accused had been taken in CBI Office.
267. I would like to submit that PW-37 handwriting expert gave the opinion about the slips after comparing them with admitted documents pertaining to the accused and not on basis of specimen alone. According to his report accused R.B. Dubey was author of document recovered.
268. According to Ld. Counsel for the accused PW- 8 in his cross examination had admitted that he had testified in 20 cases. So according to Ld. Counsel he was a stock witness and should not be relied upon. To my mind, this man was not a stock witness. He was working with Vigilance Cell of MTNL. It is a job of a vigilance officer to look into complaints and take suitable action. So there is nothing unusual about his deposing in 20 CBI Vs. Lala Ram -199- cases. It is just as good as deposing by a police officer in large number of cases investigated by him.
269. Ld. Counsel further argued that PW-19 S.K. Goel had said that Ex. P-2 was a multi frequency tester. He was a JTO. In his cross examination he admitted that he had no knowledge of working of Ex. P-2.
270. Regarding the objection of learned counsel that Ex.P-2 was incapable of being used for making calls, I would submit that PW28 was recalled for re-examination. He claimed that as per his knowledge calls could be made from Ex.P-2 but he was not very sure about it. If we keep in mind back ground of the case, we will come to conclusion that indeed Ex.P-2 was being used for making STD/ISD calls.
271. Residential telephone of accused Lala Ram was kept under observation during course of raid. In a short CBI Vs. Lala Ram -200- period of 2-3 hours, more than 30 calls were received at his residence. The said calls were made by public persons and also co-accused Gulshan Kumar. The said public persons wanted to make international calls to USA and Singapore. Accused Gulshan Kumar also provided local numbers of people wanted to make urgent calls abroad. Large number of diaries and note books were seized from the house of accused Lala Ram which contained hundreds of telephone numbers. This would lead only to one conclusion that racket of illegal calls were being run at very large scale. It was being operated from the coaxial maintenance junction and so there is no doubt left in the mind of the court that Ex.P-2 was the instrument which was being used for making said calls.
272. Presence of the accused at coaxial maintenance junction has been proved beyond all doubts. It has also established by the testimony of independent witnesses that accused was found in possession of slip containing CBI Vs. Lala Ram -201- telephone numbers. Documents seized from the house of accused Lala Ram were sent to handwriting expert for his opinion. Hon'ble Supreme Court in Murari Lal Vs. State of Madhya Pradesh 1980 (1) SCC 704 held that court could act upon uncorroborated testimony of handwriting expert in suitable cases. The said judgment of Hon'ble Supreme Court was followed in Alamgir Vs. State (2003) 1 SCC 21. Handwriting expert gave his opinion that specimen, admitted and questioned documents were in the same hand. In other words it was accused R.B. Dubey who had written the questioned handwriting, admitted handwriting and the specimen one. If R.B. Dubey was not a co-conspirator, there was no occasion for finding of documents at the house of Lala Ram which were in the handwriting of the accused. The slip Ex. PW16/A which was found on person of R.B. Dubey at Kidwai Bhawan contained large number of local numbers. Against each local number, name of client and also international number was mentioned. The slip CBI Vs. Lala Ram -202- also carried date 4.1.94 on the top. This leads the court to draw only inference that accused R.B. Dubey was a co- conspirator along with other and facilitated making of illegal unauthorized calls.
273. CBI had examined Mr. R.B. Katarki as PW-40. Mr. Katarki deposed that he was working as Sub- Divisional Engineer and had accorded sanction for prosecution of accused R.B. Dubey. The sanction order was Ex. PW40/A. The witness upon being cross examined admitted that he had received a draft sanction order and had signed it but he had very categorically claimed in his testimony that he had carefully examined the documents which had been sent to him by CBI. He had signed the sanction order after going through it. Accused in his further statement U/s 313 Cr.P.C. claimed that sanction had been granted mechanically. Ld. Counsel for the accused also assailed the sanction order. According to him it had been granted mechanically CBI Vs. Lala Ram -203- without application of mind. Ld. Counsel for the accused relied upon judgment titled as "Mohammad Iqbal Ahmed Vs. State of Andhra Pradesh: AIR 1979 Supreme Court 677". Hon'ble Court had held therein that it was incumbent on the prosecution to prove that valid sanction had been granted by the authority. The authority should be satisfied that case for sanction had been made out. In the case in hand PW-40 had very categorically deposed that while according sanction he had carefully examined the documents. Moreover, in a previous case Indu Bhushan Vs. State of West Bengal:
AIR 1958 S.C. 148 where sanction order was prepared by the police and was put up before the sanctioning authority who signed it was upheld by Hon'ble Apex Court. Hon'ble Apex Court held:
" It is true that he did not himself dictate or draft the sanction but Mr. Bokil has stated in the clearest terms, in his examination-in-chief, that before he accorded CBI Vs. Lala Ram -204- sanction he went through all the relevant papers. There is no reason to distrust this statement of Mr. Bokil, nor has the High Court, while granting the certificate of fitness, done so. He was an officer of high rank in the Railway and must have fully aware that the responsibility of according the sanction against the official of the Railway subordinate to him lay upon him."
274. I therefore hold that sanction for prosecution of accused R.B. Dubey was proper and valid. It does not suffer from any infirmity.
275. I thus hold that prosecution has been successful in making out its case against accused beyond all shadows of doubt. It has been successful in proving its case that accused R.B. Dubey used to mature illegal ISD/STD calls. He along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- Though there is no CBI Vs. Lala Ram -205- such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black and white of money paid for such calls and that as he was a public servant he abused his official position and thus he is convicted U/s. 120-B r/w 420 IPC and U/s 13(2) r/w 13(1) (d) of P.C. Act 1988 and also for substantive offence punishable U/s 420 IPC separately. Since he was an employee of MTNL and a public servant, he abused his position and also stands convicted U/s 13(2) r/w 13(1)(d) of P.C. Act.
CBI Vs. Lala Ram -206- JAI PRAKASH
276. Accused Jai Prakash was charge sheeted for having conspired with other co-accused and having installed one multi frequency signal tester at the 7th floor in Kidwai Bhawan by the CBI. According to CBI accused Jai Prakash was a Regular Majdoor. He used to mature illegal STD/ISD calls at the instance of other conspirators. In this process, he along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- by allowing illegal STD/ISD calls. He was also charged with having damaged/tampered STD/ISD circuit at the 3rd floor of Kidwai Bhawan and illegally diverted it to 7th floor of Kidwai Bhawan for making illegal unmetered calls and lastly, since he was a public servant, he abused his official position and thus committed offence under Prevention of Corruption Act.
277. According to prosecution accused was an CBI Vs. Lala Ram -207- active conspirator who fully participated in the illegal activities for which he was charged. Prosecution had examined PW-28 Sh. Mahender Pal. In his cross examination by Ld. P.P. he identified attendance register Ex. PW16/D of the officers and staff posted at Junction Coaxial Janpath from November, 1993 to January, 1994. It carried names of accused Jai Prakash and also three other accused. The witness identified accused Jai Prakash in the Court also.
278. PW-34 was I.O. of the case Inspt. Azad Singh. He had testified that accused Jai Prakash alongwith other accused was interrogated and arrested. He had made disclosure statement Ex. PW34/J. Accused had been working as regular mazdoor at Coaxial maintenance junction and was providing STD/ISD facility unauthorizedly. He deposed that he had obtained admitted writings of the accused which were seized vide memo Ex. PW34/AQ. The same were marked A16 to CBI Vs. Lala Ram -208- A24 and were collectively Ex. PW34/AY. He deposed further that he had obtained specimen writing samples of the accused. They were S-84 to S-90 and S-292 to S-329. They were collectively Ex. PW34/BD.
279. I have already discussed at length the evidence which is available against accused persons in the present case while dealing with cases of individual accused. It is settled law that direct evidence to prove conspiracy is rarely available. Hon'ble Supreme Court in AIR 1964 SC 1184; .held :
" Direct evidence to prove conspiracy is rarely available. Therefore circumstances proved before, during and after occurrence have to be considered to decide on complicity of the accused.
280. In a later decision in case of S.L. Joshi Vs. CBI Vs. Lala Ram -209- State of Maharashtra Hon'ble Apex Court held that conspiracy is always hatched in secrecy and it was impossible to produce direct evidence of the same. It has to be proved largely from inferences drawn from the acts or illegal, omissions of the conspirators. Again in Nalini's case my lord Mr. Justice D.P. Wadhwa had held that agreement of conspiracy has to be inferred from the utterances, writings, omission and conduct of the parties. (emphasis added). When house of accused Lala Ram was searched large number of incriminating material was recovered. They were in the form of notebooks, diaries, slips of papers. They carried local telephone numbers, name of clients as well as international numbers which were to be dialled. As was held by my lord Mr. Justice D.P. Wadhwa in Nalini's case that existence of conspiracy can be inferred from writings. Let us focus our attention to this aspect. Admittedly there was no direct evidence to show that accused Jai Prakash was party to the the conspiracy. There is no evidence to show that he CBI Vs. Lala Ram -210- had dialled any international number or facilitated illegal unauthorized international calls. When the house of accused Lala Ram was searched, good number of documents were seized. Some of them were alleged to be in the handwriting of accused Jai Prakash. Q-1144 to 1168, Q-1170 to 1228, Q-1232 to 1316, Q-1328 to 1333, Q-1342 to 1351, Q-1353 to 1362, Q-1365 to 1367, Q- 1369 to 1372 and Q-1374. Admitted writings which were seized by the I.O. were A-16 to A-24, while specimen writings given by him were Ex. PW34/AY. Handwriting expert gave his report Ex. PW37/W. According to him the questioned documents seized from the house of Lala Ram admitted documents and specimen collected by the I.O. were in the same handwriting. Even for a moment if we discard specimen handwritings, still admitted writings of Jai Prakash perfectly matched with the seized questioned documents. This leads us only to one inference and that is accused Jai Prakash was an active conspirator. He played his role in the conspiracy and CBI Vs. Lala Ram -211- made illegal calls at behest of co-accused. Had he not been conspirator, documents in his handwriting would never have been recovered during search.
281. CBI had examined Mr. Razi Ahmed as PW-39. Mr. Razi Ahmed deposed that he had accorded sanction for prosecution of accused Jai Prakash. The said order was Ex. PW39/A. He had granted sanction after going through statement of witnesses and other documents. Upon being cross examined by Ld. Counsel for the accused, he admitted having received draft sanction order. Ld. Counsel for the accused assailed the sanction order submitting that draft had already been provided by the CBI and witness did not apply his mind. I am afraid, it is not so. Witness very categorically in his testimony had claimed that he had examined carefully all the documents which had been forwarded to him before signing the sanction order. Accused also in his further statement U/s 313 Cr.P.C. claimed that sanction had been CBI Vs. Lala Ram -212- accorded mechanically without application of mind. Ld. Counsel for the accused relied upon judgment titled as "Mohammad Iqbal Ahmed Vs. State of Andhra Pradesh: AIR 1979 Supreme Court 677". Hon'ble Court had held therein that it was incumbent on the prosecution to prove that valid sanction had been granted by the authority. The authority should be satisfied that case for sanction had been made out. In the case in hand PW-39 had very categorically deposed that while according sanction he had carefully examined the documents. Moreover, in a previous case Indu Bhushan Vs. State of West Bengal: AIR 1958 S.C. 148 AIR where sanction order was prepared by the police and was put up before the sanctioning authority who signed it was upheld by Hon'ble Apex Court. I have already reproduced above findings of Hon'ble Apex Court.
282. I therefore hold that sanction for prosecution of accused Jai Prakash was proper and valid. It does not CBI Vs. Lala Ram -213- suffer from any infirmity.
283. I, thus, hold that prosecution has been successful in making out its case against accused beyond all shadows of doubt. It has been successful in proving its case that accused Jai Prakash used to mature illegal ISD/STD calls. He along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- Though there is no such material on record, but it stands established from evidence of I.O. and other PW that accused persons used to charge between Rs. 125/- to Rs. 150/- per call. CBI had rounded off the figure to Rs. 100/- per call and multiplied it with the number of telephone numbers which had been recovered. About 1400 calls had been made during month as per diaries. Multiplying it with Rs. 100/- it comes to Rs. 1,40,000/- per month and after multiplying it with 48 months it comes to Rs. 67,20,000/-. This is reasonable calculation. Otherwise there is no other way to estimate loss to government. There cannot be any receipt in black CBI Vs. Lala Ram -214- and white of money paid for such calls and that as he was a public servant he abused his official position and thus he is thus convicted U/s. 120-B r/w 420 IPC and U/s 13(2) r/w 13(1) (d) of P.C. Act 1988 and also for substantive offence punishable U/s 420 IPC separately. Since he was an employee of MTNL and a public servant, he abused his position and also stands convicted U/s 13(2) r/w 13(1)(d) of P.C. Act.
Sushil Kumar
284. According to CBI accused Sushil Kumar Jain was a Regular Majdoor. He used to mature illegal STD/ISD calls at the instance of other conspirators. In this process, he along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- by allowing illegal STD/ISD calls. He was also charged with having damaged/tampered STD/ISD circuit at the 3rd floor of Kidwai Bhawan and illegally diverted it to 7th floor of Kidwai Bhawan for making illegal unmetered calls and CBI Vs. Lala Ram -215- lastly, since he was a public servant, he abused his official position and thus committed offence under Prevention of Corruption Act.
285. Prosecution examined PW1 Man Singh in support of its case. Maan Singh testified that accused Lala Ram after his arrest took CBI team to Kirti Nagar for collecting money towards unmetered illegal calls made in the past. The said person was stated to be son of retired Magistrate and he paid Rs.200/- to Lala Ram. PW Maan Singh then identified accused Sushil Kumar in the Court room as the person who had paid money to accused Lala Ram.
286. PW2 Ram Gopal testified that he was posted as JTO in Junction Coaxial 7th Floor Kidwai Bhawan. He had handed over duty chart and registers to CBI. They were Ex.PW2/P1 to PW2/P9. He testified further that accused Sushil Kumar and two others were called by CBI CBI Vs. Lala Ram -216- officers where they gave their specimen writings. Specimen writing of Sushil Kumar Jain were Ex.PW2/B1 to PW2/B7.
287. PW26 Ajit Singh testified that he was working as AGM Administration. He granted sanction to prosecute accused Sushil Kumar. The said order was Ex.PW26/A.
288. I.O. of the case testified that he had taken specimen writing samples of Sushil Kumar. The same were S-168, S-174, S-453 to S-472. They were already Ex.PW2/D1 to PW2/D7. Other specimen sheets were S- 453 to S-472. They were collectively Ex.PW34/BF. According to learned PP accused was member of the team and had conspired with others to cheat MTNL.
289. According to learned counsel, accused was a regular majdoor and he used to do menial jobs. He was CBI Vs. Lala Ram -217- not present at the time of raid at Coaxial Junction. According to him prosecution had not proved its case against the accused.
290. PW-1 Mann Singh had deposed that son of a Magistrate had paid Rs. 200/- to accused Lala Ram. In the Court the witness pointed out at accused Sushil Kumar as son of a Magistrate.
291. Sushil Kumar already was working in MTNL. There would have been no occasion for him to act as son of a Magistrate and pay Rs. 200/- to accused Lala Ram. Ex. PW1/B recovery memo bears signatures of accused Sunil and Lala Ram and not of accused Sushil Kumar and Lala Ram. I.O. had also claimed that Sunil had paid Rs. 220/- to accused Lala Ram. He made no claim that Rs. 220/- was paid by Sushil who had been pointed out by PW-1 Mann Singh. Incidently accused Sunil is a Proclaimed Offender in the case.
CBI Vs. Lala Ram -218-
292. Even for conspiracy there has to be some little role played by all co-accused. Accused Sushil Kumar neither possessed any instrument to facilitate STD/ISD calls nor was his assistance necessary. Handwriting expert did not express any opinion regarding handwriting of accused Sushil Kumar. Merely because he was working in the same office is not enough to convict him in the matter. He is entitled to benefit of doubt. I, therefore, extend benefit of doubt to him and acquit him of the charges framed against him. His bail bonds discharged.
Sarvan Kumar
293. According to CBI accused Sarvan Kumar was a Regular Majdoor. He used to mature illegal STD/ISD calls at the instance of other conspirators. In this process, he along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- by allowing illegal STD/ISD calls.
CBI Vs. Lala Ram -219- He was also charged with having damaged/tampered STD/ISD circuit at the 3rd floor of Kidwai Bhawan and illegally diverted it to 7th floor of Kidwai Bhawan for making illegal unmetered calls and lastly, since he was a public servant, he abused his official position and thus committed offence under Prevention of Corruption Act.
294. PW2 Ram Gopal testified that he was posted as JTO in Junction Coaxial 7th Floor Kidwai Bhawan. He had handed over duty chart and registers to CBI. They were Ex.PW2/P1 to PW2/P9. He testified further that accused Sushil Kumar and two others were called by CBI officers where they gave their specimen writings. Specimen writing of Sarvan Kumar were Ex.PW2/C1 to PW2/C7.
295. PW26 Ajit Singh testified that he was working as AGM Administration. He granted sanction to prosecute accused Sarvan Kumar. The said order was CBI Vs. Lala Ram -220- Ex.PW26/A.
296. IO of the case testified that he had taken specimen writing samples of Sarvan Kumar. The same were S-161, S-167, S-441 to S-452. They were already Ex.PW2/C1 to PW2/C9. Other specimen sheets were collectively Ex.PW34/BG. According to learned PP accused was member of the team and had conspired with others to cheat MTNL.
297. According to learned counsel, accused was a regular majdoor and he used to do menial jobs. He was not present at the time of raid at Coaxial Junction. According to him prosecution had not proved its case against the accused.
298. Even for conspiracy there has to be some little role played by all co-accused. Accused Sarvan Kumar neither possessed any instrument to facilitate STD/ISD CBI Vs. Lala Ram -221- calls nor was his assistance necessary. Handwriting expert did not express any opinion regarding handwriting of accused Sarvan Kumar. Merely because he was working in the same office is not enough to convict him in the matter. He is entitled to benefit of doubt. I, therefore, extend benefit of doubt to him and acquit him of the charges framed against him. His bail bonds discharged.
R.B. Chaubey
299. According to CBI accused R.B. Chaubey was a Regular Majdoor. He used to mature illegal STD/ISD calls at the instance of other conspirators. In this process, he along with other conspirators cheated MTNL to the tune of Rs.67,20,000/- by allowing illegal STD/ISD calls. He was also charged with having damaged/tampered STD/ISD circuit at the 3rd floor of Kidwai Bhawan and illegally diverted it to 7th floor of Kidwai Bhawan for CBI Vs. Lala Ram -222- making illegal unmetered calls and lastly, since he was a public servant, he abused his official position and thus committed offence under Prevention of Corruption Act.
300. Prosecution had examined PW-27 Mr. S. Basudeva. He deposed that he had granted sanction to prosecute accused R.B. Chaubey. The said order was Ex. PW27/A. I.O. Inspector Azad Singh in his testimony deposed that vide seizure memo Ex. PW34/AM and seizure memo D-60 which was Ex. PW34/AQ, he seized admitted writings of accused R.B. Chaubey. They were A-25 to A-30 and A-164 and A-165. He had also obtained specimen writings of the accused R.B. Chaubey on different dates. The said writings were marked S-91 to S-114. They were collectively exhibited as PW34/BC. Apart from the above material there is no evidence against the accused R.B. Chaubey. Handwriting expert PW-37 in his report stated that he could not express any opinion on these writings.
CBI Vs. Lala Ram -223-
301. So there is nothing left to indicate that accused R.B. Chaubey had entered into any kind of criminal conspiracy with co-accused. Merely because he was posted in the office is not sufficient to convict him for the offences alleged. It was duty of the prosecution to have led some kind of positive evidence to establish guilt of the accused. I, therefore, give him benefit of doubt and acquit him of the charges. His bail bonds discharged. Announced in open Court on 02nd August, 2010.
(PRADEEP CHADDAH ) Special Judge:CBI-01 Central District. Delhi CBI Vs. Lala Ram -224- IN THE COURT OF SH. PRADEEP CHADDAH:
SPECIAL JUDGE (CBI-01), CENTRAL, DELHI.
CC No. 68/06 RC 1(A)/94
P.S. CBI/ACB/ND
C.B.I. Vs. 1.Sh. Lala Ram S/o Sh. Lakhmi Singh R/o A-8/9, Mahipalpur Extn., Gurgaon Road, New Delhi.
2. Smt. Suresh Lata W/o Sh. Lala Ram R/o A-8/9, Mahipalpur Extn., Gurgaon Road, New Delhi.
3. Sh. S.P. Grover S/o Late Sh. Jagdish Chander R/o E-62, Pocket-'K', Seikh Sarai, Phase-II, New Delhi.
4. Sh. Gulshan Rai S/o late Sh. Mool Raj R/o S-5/101, Subhash Nagar, New Delhi.
5. Sh. Sobhraj Jai Singhani A-31, Naraina Industrial Area, Phase-I, New Delhi.
6. Sh. Ajay Kumar Bhardwaj S/o Sh. Bhagwati Prasad Bhardwaj R/o C-1/36, DDA Janta Flats, Hastsal, New Delhi-59
7. Sh. Amarnath s/o Sh. Fagu R/o H.No. 49, Block-a, Gali No. 2, Parkash Vihar Karawal Nagar,Delhi.
8. Sh. R.B. Dubey S/o Sh. Paramtma Dubey CBI Vs. Lala Ram -225- R/o E-45, Mukund Vihar, Karawal Nagar,Delhi.
9. Sh. Jai Prakash S/o Sh. Chintamani R/o H.No. 89, Sarojini Nagar, New Delhi.
10.Sh. Susheel Kumar S/o Surender PalSingh R/o B-202, Sadatpur Colony, Karawal Nagar, Delhi.
11.Sh. Sarwan Kumar S/o Sh. Dudh Nath Misra R/o H.No. 149-A, New Township Colony, Power House, Badarpur, New Delhi.
12.Sh. R.B. Chaubey S/o Sh. Rajmal Chaubey R/o 9/10, Ambedkar Basti, Mauzpur, Delhi-53.
ORDER ON SENTENCE
1. This Court vide its judgment dt. 02.08.10 found nine accused persons guilty under various sections of law.
2. I have heard Mr. Shukla Ld. Proxy P.P. as well as Ld. Counsels for various convicts very extensively on point of sentence. Mr. Ahluwalia Ld. Counsel for CBI Vs. Lala Ram -226- accused S.P. Grover and Gulshan Rai prayed for taking of lenient view as both of them were elderly persons and had suffered enough. He relied upon case titled as Rajesh Kumar Vs. State : 2004(1) JCC 322 and R.V. Lyngdoh Vs. State (Delhi) Spl. Establishment : (1999) 2 Supreme Court Cases
645. Similar plea was raided by Ld. Counsel for convict Sobhraj Jaisinghania who relied upon case titled as Barindra Ram Khaud Vs. CBI : 2008 Crl. L. J. (NOC) 536 (Gau.). Ld. Counsel who made submissions on behalf of convicts Lala Ram and Suresh Lata pleaded that they were not previous convicts. Similar request was made by Counsels for remaining convicts.
3. I have gone through the judgments cited. My Lord Mr. Justice R.S. Sodhi in Rajesh Kumar Vs. State had held that a sentence below minimum prescribed can also be passed by the Court in facts and circumstances of each case. Similarly in R.V. CBI Vs. Lala Ram -227- Lyngdoh Vs. State (Delhi) Spl. Establishment Hon'ble Supreme Court had held that keeping in mind old age of the appellant accused can be sentenced to period already undergone if there were special circumstances in the case. While in Barindra Ram Khaud Vs. CBI Hon'ble Gauwahati High Court had reduced the sentence to six months. Upon questioning it got revealed that many of the convicts before us have not even spent a day in custody at all. While few had spent period of 22-30 days in custody.
4. Hon'ble Supreme Court in State of Andhra Pradesh Vs. V. Vasudeva Rao : 2004 Crl. L. J. 620 had held that in case of illegal gratification there were no scope of any leniency. Hon'ble Supreme Court had also observed that mere long pendency of a case cannot be termed as a special reason for reducing the minimum sentence mandated by the Parliament. My Lord Mr. Justice S. Jafar Imam CBI Vs. Lala Ram -228- and my Lord Mr. Justice J.L. Kapur in Ram Lal Vs. State of Bombay :AIR 1960 SC 961 had held:
" For a public servant to be guilty of corruption is a very serious matter and the Courts would not look upon it with undue leniency."
5. Now I will take up case of each individual accused one by one.
Lala Ram
6. Accused Lala Ram was convicted U/s. 120-B r/w 420 IPC and U/s 13(2) r/w 13(1) (d) of P.C. Act 1988. In addition he was held guilty under substantive offence U/s 420 IPC and U/s 13(2) r/w 13(1)(d) of P.C. Act.
7. Ld. Counsel prayed for taking of lenient view and submitted that convict had retired from service and was a diabetic. He prayed for taking of a lenient view. Mr. Shukla Ld. PP on the other hand prayed for stringent sentence. Accused was the axis around CBI Vs. Lala Ram -229- which the entire scheme of nefarious activities revolved. He was the kingpin of the operation. After obtaining requirement of the clients, he used to pass on the instruction to the staff on duty who used to mature the calls causing loss of Rs. 67,20,000/- to MTNL. He was very important conspirator and had he been not there, probably the conspiracy would not have taken place. Thus I am not inclined to take a lenient view.
8. I sentence him to undergo rigorous imprisonment for four years for substantive offence U/s 420 IPC. He shall be also paying fine of Rs. 20,000/- in default of payment of fine, he shall be undergoing S.I. for further one year. He is further sentenced to R.I. for two years plus he is directed to deposit fine of Rs. 10,000/- for substantive offence U/s 13(2) r/w 13(1)(d) of P.C. Act. In event of default of payment of fine, he shall be undergoing S.I. for six months. He is further sentenced to R.I. of two years plus he CBI Vs. Lala Ram -230- is directed to deposit fine of Rs. 10,000/-. In default of payment of fine he suffers six months S.I. for offence U/s 120-B IPC r/w 420 IPC and 13(2) r/w 13(1)(d) of P.C. Act.
Suresh Lata
9. Ld. Counsel for the convict argued that she was the first time offender and had no criminal history. He prayed for a lighter sentence. On the other hand Mr. Shukla prayed for stringent action.
10. Convict Suresh Lata was an active conspirator.
She alongwith her husband were running a racket. She played her role well. She was an active participant in the activities. She used to receive calls from the clients and give instructions to the staff on duty at the telephone exchange. She was found guilty U/s 120-B r/w 420 IPC and also 13(2) r/w 13(1) (d) of Prevention of Corruption Act and also for substantive offence punishable U/s 420 IPC.
CBI Vs. Lala Ram -231-
11. I am not inclined to take lenient view of the matter. I sentence her to undergo R.I. for two years for substantive offence U/s 420 IPC. In addition she shall be paying fine of Rs. 10,000/-. In event of default of payment of fine, she shall be undergoing S.I. for six months. She is further sentenced to R.I. of one year. In addition she shall be paying fine of Rs. 5,000/-. In event of default of payment of fine, she shall be undergoing S.I. for six months for offence U/s 120-B IPC r/w Sec. 420 IPC and 13(2) r/w 13(1)(d) of P.C. Act.
S.P. Grover
12. Ld. Counsel for the convict submitted that accused was 75 years old and had two married daughters and his wife was sick. He further submitted that even only 10/12 telephone numbers in his handwriting were recovered. He would not have made any substantial amount by his activities. I have given my considered thought to the submissions made by him and also by Mr. Brajesh CBI Vs. Lala Ram -232- Shukla Ld. PP for CBI.
13. Keeping in mind his age, I sentence him to undergo two years R.I. plus deposit fine of Rs. 10,000/- and in event of failure to deposit the fine, he suffers six months S.I. for substantive offence U/s 420 IPC. I further sentence him to one year R.I. plus direct him to deposit fine of Rs. 5,000/- and in case of failure to pay fine, he suffers S.I. for six months for offence U/s 120-B r/w 420 IPC and 13(2) r/w 13(1)(d) of P.C. Act. He is further sentenced to undergo one year R.I. plus pay fine of Rs. 5,000/-. In default of payment of fine, he suffers six months S.I. for substantive offence U/s 13(2) r/w 13(1)(d) of P.C. Act.
Gulshan Rai
14. Ld. Counsel prayed for taking of lenient view. He submitted that he was a retired official from Air Force. He was 67 years old. He had already lost a son while other son is mentally unsound. Upon CBI Vs. Lala Ram -233- being questioned, convict informed me that his second son was probably a drug addict and had left home. Though the convict belonged to defence forces but he stooped to this level out of sheer greed.
15. Keeping in mind his age, I sentence him to undergo two years R.I. plus deposit fine of Rs. 10,000/- and in event of failure to deposit the fine, he suffers six months S.I. for substantive offence U/s 420 IPC. I further sentence him to one year R.I. plus direct him to deposit fine of Rs. 5,000/- and in case of failure to pay fine, he suffers S.I. for six months for offence U/s 120-B r/w 420 IPC and 13(2) r/w 13(1)(d) of P.C. Act. He is further sentenced to undergo one year R.I. plus pay fine of Rs. 5,000/-. In default of payment of fine, he suffers six months S.I. for substantive offence U/s 13(2) r/w 13(1)(d) of P.C. Act.
Sobhraj Jaisinghania CBI Vs. Lala Ram -234-
16. He is the oldest among the accused facing trial. Court was informed that he had five married daughters and had suffered long drawn trial. Keeping in mind his role that he was just a beneficiary who resorted to illegal means just for some petty gain, I am of the view that one year R.I. for substantive offence U/s 420 IPC would meet ends of justice. In addition he shall be paying fine of Rs. 50,000/-. In case he fails to pay the fine, he shall be suffering one year S.I. He is also sentenced to undergo one year R.I. U/s 120-B r/w 13(2) r/w 13(1)(d) of P.C. Act and Sec. 420 IPC. He is also directed to deposit fine of Rs. 25,000/-. In case of failure to pay the fine he shall be undergoing S.I. for six months.
A.K. Bhardwaj
17. This man was an outsider in the case. He did not belong to MTNL department. He was gainfully employed with D.T.C. but out of sheer greed, he joined his co-conspirators and actively scouted for CBI Vs. Lala Ram -235- clients.
18. I sentence him to undergo rigorous imprisonment for three years for substantive offence U/s 420 IPC. He shall be also paying fine of Rs. 20,000/- in default of payment of fine, he shall be undergoing S.I. for further one year. He is further sentenced to R.I. for two years plus he is directed to deposit fine of Rs. 10,000/- for substantive offence U/s 13(2) r/w 13(1)(d) of P.C. Act. In event of default of payment of fine, he shall be undergoing S.I. for six months. He is further sentenced to R.I. of two years plus he is directed to deposit fine of Rs. 10,000/-. In default of payment of fine he suffers six months S.I. for offence U/s 120-B IPC r/w 420 IPC and 13(2) r/w 13(1)(d) of P.C. Act.
Amarnath, R.B. Dubey and Jai Prakash
19. I am clubbing these three accused together for the purpose of sentence because all three of them CBI Vs. Lala Ram -236- were simple majdoors who fell to the schemes of their senior well placed gainfully employed co- conspirators. While rest of them joined the conspiracy for greed, probably these three people joined because of their need. They were lowerly placed staff who used to receive instructions from the kingpin and his wife and mature the calls. While accused Jai Prakash has three daughters, accused Amarnath has two children and R.B. Dubey has four daughters one of whom is stated to be mentally upset. Keeping in view their background and position in life, to my mind sentence of six months R.I. for substantive offence U/s 420 IPC would meet ends of justice. In addition each one shall be paying fine of Rs. 1,000/- and in default of payment of fine, suffer thirty days S.I. I further sentence each one of them to suffer one year R.I. for offence U/s 120-B IPC r/w 13(2) 13(1)(d) of P.C. Act and Sec. 420 IPC. In addition each one shall be paying fine of Rs. 1,000/-. In default of payment of fine, suffer thirty CBI Vs. Lala Ram -237- days S.I. For substantive offence U/s 13 (2) r/w 13(1)(d) of P.C. Act, I sentence each one of them to undergo one year R.I. in addition to fine of Rs. 1,000/-. in event of default to pay fine, they shall suffer S.I. for thirty days.
20. All the sentences of all the convicts shall run concurrently. They shall also be given benefits of period undergone as under trial (if any). Announced in open Court on August 04, 2010. ( PRADEEP CHADDAH ) Special Judge:CBI-01 Central District. Delhi CBI Vs. Lala Ram