Delhi District Court
State (Cbi) vs . on 21 October, 2011
1
IN THE COURT OF SH. DHARMESH SHARMA,
SPECIAL JUDGE CBI03, NEW DELHI DISTRICT, NEW DELHI.
CC No. 43/11
RC No. 11A/2001/CBI/ACB/New Delhi
U/s 13 (2) r/w 13(1) (d) of PC Act & 120B/420/201 IPC
State (CBI) Vs.
1. HJ SINGH, JTO, MTNL
S/O S.MANOHAR SINGH
R/O B13, NDSEII, NEW DELHI.
2. SHIV SHANKAR MISHRA, R.M., MTNL
S/O THAKUR PRASAD MISHRA,
R/O575A,MANDAWALI,DELHI.
(SINCE DISCHARGED BY HON'BLE
HIGH COURT)
3. SUDHIR KUMAR
S/O LATE HEERA LAL
R/O 23A, DDA FLATS,
SHAHPUR JAT, NEW DELHI.
4. MOHAN SINGH,
S/O LATE NARAIN SINGH
R/O 68B DDA FLATS,
SHAHPUR JAT, NEW DELHI.
5. SMT. SUMAN ARORA
W/O MADAN MOHAN ARORA
R/O 65A, DDA FLATS, SHAHPUR
JAT, NEW DELHI.
6. GYAN PRAKASH
S/O LATE SHRI CHHOTE LAL
R/O 141B, SHAHPUR JAT
NEW DELHI.
State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.1/27
2
7. MOHD. SHAFIQ
S/O MOHD. KEFAYAT
R/O 381B BLOCK,
DILSHAD GARDEN, DELHI.
8. MOHD. IRSHAD @ RAJA
S/O MOHD. ILYAS,
R/O D35 BATLA HOUSE
OKHLA, NEW DELHI.
9. MOHD. JAVED @ AKHTAR JAVED
S/O LATE WAJAHAT AFROZ,
R/O A31 BATLA HOUSE,
OKHLA, NEW DELHI.
Date on which charge sheet was filed - 29.03.2005
Date on which charges were framed 05.02.2008
Date on which judgment was reserved19.10.2011
Date on which judgment was pronounced21.10.2011
APPEARANCES:
Mr. A. K. Mishra, Ld.Sr.PP for CBI.
Dr. L. S. Chaudhary, Advocate for A1.
Mr. M. Mohsin Israily, Advocate for A7..
Mr. S. P. Kaushal, Advocate for remaining accused persons.
21.10.2011
JUDGMENT
1. The present FIR Ex.PW30/A was registered on 15.01.2001 on a source information to the effect that accused H. J. Singh (A1) working as JTO, MTNL, Nehru Place Exchange, New Delhi had been looking after OCS i.e (Opening and Closing of Subscriber numbers) at Remote State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.2/27 3 Switching Module for short as 'RSM' at Sadiq Nagar Telephone Exchange, New Delhi during the year 1998 and entered into a criminal conspiracy with the subscribers, namely Sudhir Kumar (A3) having telephone no. 6491090, Smt. Suman Arora (A5) having telephone no. 6494564; Smt. Maninder Singh Kaur having telephone number 6491927 (who remained untraced) and Mohan Singh (A4) who was having telephone no. 6496826 whereby their phones were diverted and installed at 141B Shahpur Jat, New Delhi in connivance with accused Gyan Prakash (A6) which premises belonged to his brother Padam Kumar; that unlawful conference facility was facilitated by accused H. J. Singh (A1) by changing the command in the computer system whereby four telephone connections were upgraded to ISD facilities and calls used to be made to Indians calling their homes in India from Saudi Arabia and money collected through hawala channels; and in the entire clandestine transaction accused Shiv Shankar Mishra (A2) (since discharged from High Court of Delhi) acted as conduit between accused H. J. Singh (A1) JTO on the one hand and accused Gyan Prakash (A6), Mohd. Irshal (A8), Mohd. Javed (A9) and Mohd. Shafiq (A7) on the other hand; that money used to exchange hands through accused Shiv Shankar Mishra (A2) thereby causing huge loss of Rs. 1,81,83,301/ to MTNL.
FACTS
2. It is the case of the State (CBI) that investigation revealed that from 01.05.1998 to 15.08.1998 calls from the above referred four telephone connections were made using extensive ISD/STD calls; that it was found that accused H. J. Singh (A1) was to carry out the OCS work for level 625 and 649 belonging to the Nehru Place 5 ESS State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.3/27 4 Exchange which was imported, provided and maintained by Lucent technologies Ltd. of USA in collaboration with TATAs; that as per the prescribed procedure the DET used to assign a system of password to JTO for carrying out OCS work and the JTO alone could have access to the system; that the system envisaged a password were the prefix of the authorized officers was automatic while the official concerned was supposed to devise his own suffix part and no one else was authorised to do the OCS work. It is the case of the State (CBI) that during the investigation it was found that accused H. J. Singh (A1) as per the orig log status 6491090 upgraded the STD bar to STD/ ISD on 01.05.1998 at 13:38 hours by using the prefix password identity as 'rcvhjs' and the system was accessed again as per orig log on 02.05.1998 using the same password and the SR value was increased to "6" thereby maneuvering that telephone could only be used for making STD/ISD calls. Similarly, investigation revealed that as per origlog accused had accessed to the system on 30.04.1998 at 11:04 hours by using the same password 'rcvhjs' and upgraded STD to ISD in respect of phone no. 6491927 and again accessed system on 02.05.1998 by using the same password also changing SR value of this phone to "6" thereby facilitated STD/ ISD calls.
3. It is the case of the prosecution that though orig log status pertaining to remaining two numbers 6494564 and 6496826 could not be available, there were striking similarities in the use of the four telephone numbers after 30.04.1998 that suggested a jump up in the fortnightly meter reading of the four telephone numbers entailing heavy ISD calls up to 15.08.1998. It is also alleged that accused H. J. Singh (A1) while upgrading the status of the four telephone numbers State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.4/27 5 ensured that the details of STD/ISD calls made on such telephone numbers did not get recorded in the system and thus not incorporated / reflected in the bills issued to the subscribers making it possible for the coconspirators / subscriber to disown the bills; that the telephone were used for providing ISD facilities to the Indians calling their homes from Saudi Arabia by initiating call from Flat no. 141 B, Shahpur Jat, Delhi and belonging to Padam Kumar brother of accused Gyan Prakash (A6) connecting people through conference machine and the payment used to be received from Saudi Arabia through Hawala Channels and distributed amongst the accused persons on weekly and monthly basis.
4. It is the case of the State (CBI) that as soon as the lid was off the operations, vital evidence was destroyed by A1 in connivance with A6 and others by removing the telephone wires of all the telephone leading to the room at first floor near stairs house no. 141B Shahpur Jat, Delhi. It is the case that subscribers A3, A4, and A5 made pretence of innocence by filing written complaints against the heavy bills after destruction of evidence / scene of crime although it is a fact that they could not use their phones for making local calls because of restriction during May August 1998.
5. It is the case of the prosecution that during the course of investigation, the accused persons were arrested and as per disclosure statement of Mohd. Shafiq Ex.PW17/A and Mohd. Irsad Ex. PW 22/D,. the criminal conspiracy was hatched with Mohd. Javed (A9) sometimes in March - April 1998 to find out if there was any official in the MTNL who could provide ISD facilities of local telephone State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.5/27 6 unauthorizedly so that the phone could be used for ISD calls and accused Mohd. Shafiq took the responsibility to make such facility and met accused A2 Shiv Shankar Mishra (since discharged) reader meter MTNL, Patparganj, Delhi who agreed to help and then speak to accused Gyan Prakash (A6) and then four telephone connections were installed at 141B, Shahpur Jat, Delhi in criminal conspiracy with accused A3, A4 and A5.
6. Needless to state that after completion of investigation and obtaining Sanction for prosecution as per Section 19 of the PC Act against the accused A1 and A2 , the present charge sheet was filed.
CHARGE
7. All the nine accused persons were firstly charged on the count of entering into a criminal conspiracy in the year 1998 for availing four telephone connections and getting them installed at 141B Shahpur Jat, Delhi for providing unauthorized conference facilities by upgrading the four connections to ISD and thereby causing wrongful loss of Rs. 1,81,83,301/ to the MTNL and thereafter destroying the evidence u/s 120B r/w section 420/201 of IPC read with Section 13(2) and 13 (1) (d) of Prevention of Corruption Act 1988.
8. Accused H. J. Singh and Shiv Shankar Mishra (A2) were charged separately for committing offences u/s 13 (1) (d) r/w 13 (2) of Prevention of Corruption Act 1988 and also under Section 201 of IPC; and further accused Sudhir Kumar (A3) Mohan Singh (A4), Suman Arora (A5), Gyan Prakash (A6) and Mohd. Javed (A9) were charged for committing cheating as per Section 420 of the IPC. The accused State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.6/27 7 persons pleaded not guilty to the charges and claimed trial.
PROSECUTION EVIDENCE
9. The following witnesses were examined in the category of Public Witnesses. PW1 was Mr. Ajit Singh, LDC from Income Tax Department who deposed that he was called in the office of the CBI on 22.04.2004 and in his presence specimen handwriting and signatures of accused Mohd. Javed (A9) were taken vide Ex.PW 1/A which are S34 to S59; PW2 was Mr. Navin Chand, Head Clerk from Northern Railways Baroda House, Delhi who deposed about going to CBI office on 28.04.2004 and in his presence CBI obtaining specimen signatures of accused Suman Arora (A5) which are S89 to S98 and the same are marked Ex.PW 2/A . He also deposed that CBI took specimen signatures of accused Mohan Singh (A4) in his presence that are S60 to 86 and are marked Ex.PW 2/B; PW8 was Mrs. Raj Kumari. The witness did not support the prosecution case and was treated as hostile witness. She denied that she retained telephone no. 6471927 from its previous owner Balbir Singh on purchasing his flat and she also denied that the said telephone connection was passed on to Padam Singh brother of accused Gyan Prakash (A6); PW10 was Roop Chand posted as Cashier in Shahpur Jat Branch of UCO Bank. He deposed about the applications for pay orders for Rs.3,000/ vide bank voucher Ex.PW 10/C which was applied by accused Mohd. Javed while availing telephone connection no. 6417331 at 141 B Shahpur Jat, Delhi. The commercial file of which was proved as Ex.PW 26/I. He further deposed about the application form for pay draft of Rs.3,000/ in the name of MTNL paid by accused Sudhir Kumar at the time of applying for connection no. 6491090 and the bank voucher Ex.PW State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.7/27 8 10/D. PW11 Y. P. Wadhera, Assistant Chief Officer and PW 12 Ms. Anju Mathur were examined on the same aspect; PW 17 was Abdul Rahim, Clerk from the office of the Chief Commercial Manager(IT) Northern Railways IRCA, Delhi . This witness deposed that statement of accused Mohd. Safiq (A7) was recorded in his presence on 29.05.2001 vide Memo Ex.PW 17/A to Ex.Pw 17/C and deposed that thereafter he was taken to some place for raid; PW22 was K. S. Rawat, who was working as LDC in Archaeological Survey of India. He deposed about being associated in the team of CBI on 17.05.2004 during which accused Mohd. Irshad @ Raju (A7) was interrogated and made a disclosure statement Ex.PW22/A and then took the CBI team to first floor portion of flat no.141B Shahpur Jat, New Delhi as shown in the site plan Ex.PW22/B; PW28 was V.S.Saini, LDC, Archaeological Survey of India, who was associated during the investigation on 17.05.2004 ; PW25 was Ajay Ratnal. This witness did not support the prosecution case except that he admitted having made statement Ex.PW25/A to the IO regarding one Balbir Singh running a shop in the vicinity and using telephone number 6471927. The prosecution case is that this telephone number was applied by Ms. Maninder Singh and given / sold to Balbir Singh ; PW27 was Balram Bhatt, Tax Assistant with Income Tax Department . He deposed that specimen signatures of accused Sudhir Kumar Ex.PW3/14 to Ex.PW3/46 were taken in his presence.
10. Only one witness was in the category of expert witness. PW3 Mr. D. R. Handa, Sr. Scientific Officer, GradeII, CFSL, New Delhi. He proved his opinion Ex.PW 3/2 in regard to handwriting and signatures of accused A3, A4, A5 and A9 on the questioned documents which State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.8/27 9 were application forms contained in the commercial files whereby the telephone connections in question were applied.
11. The following witnesses are from the MTNL Department PW4 was Hari Singh Assistant Vigilance Officer, South Zone, MTNL who deposed that in January 2001 he handed over eight commercial files in regard to telephone connections and the same is Ex.PW 4/A to the Investigating Officer of the CBI; PW5 was Mr. Karamveer Singh, SDO, Asiad Village, Delhi. He explained the procedure regarding the opening and closing of any telephone connection on which I shall dwell later on in this judgment. Suffice to state that the witness deposed that on 02.03.2002 on the request of the CBI, he supplied the history of telephone connections no. 6491090, 6494564, 6491927 and 6496826 Ex.PW 5/1 to Ex.PW 5/4 respectively to the CBI vide latter Ex.PW 5/5. PW6 was Smt. Alka Nigam, Accounts Officer MTNL who deposed that she had handed over two telephone bills of each of the telephone numbers Ex.PW 6/B to PW 6/J besides details of subscriber billing / payment details Ex.PW 6/K to PW 6/M to the IO; PW7 was Ori Lal Sr. Technical Supervisor, MTNL, Nehru Place, Delhi. He deposed handing over the history sheets in respect of telephone no 6471927, 6214564 and 6412090 to the CBI; PW9 was Mr. K. K. Varshney, SDO, Okhla Telephone Exchange, Delhi. He deposed that vide letter dated 25.06.2002 he had supplied the records of 02 telephone numbers 6214564 (new 6494564) and 6471927 (new 6491927) Ex.PW 9/B and Ex.PW 9/C respectively to the CBI. He deposed that he also provided to the IO attested copy of the request letter of accused Suman Arora (A5) for discontinuing STD facilities in respect of telephone no. 6494564 which is Ex.PW 9/D. State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.9/27 10
12. PW 13 was Mr. P. K. Gupta, Sub Divisional Engineers, MTNL who was posted in 5 ESS Switching Room Exchange in the year 2003. He deposed that vide memo Ex.PW 13/A he handed over jumber letters dated 06.03.1998 in original for disconnection of telephone nos. 6491090, 6494564 which are Ex.PW 13/B1 & Ex.PW 13/B2 respectively with annexures. He further deposed that he supplied the certified copy of orig. log Ex.PW 13/C in regard to restoration of the said two numbers as well. The jumber letters for restoration were proved as Ex.PW 13/D to Ex.PW 13/E; PW 14 was Anil Raina, Junior Telecom Officer, who deposed that he was working as Operator Supervisor in Nehru Place Exchange. He deposed preparing history sheet Ex.PW 7/D of telephone no. 6491090; PW15 was Mr. Manjeet Singh, was Supervisor in Fault Repair Service Record Room, Nehru Place Exchange, Delhi who deposed that he prepared history sheet of telephone no. 6494564 which is Ex.PW 7/C and gave it to the CBI; PW 16 was S. G. Bhatnagar, Divisional Engineer from MTNL who deposed according sanction for prosecution as against the accused Shiv Shankar Mishra (A2) vide order Ex. PW 16/A; PW18 was Arvind Dixit, who was Sub Divisional Engineer during the relevant time, who deposed that on 01.04.2002 he handed over the telephone registration file of telephone no.6496491(old no.) in the name of Mrs. S.Arora to the CBI Ex.PW18/B vide memo Ex.PW18/A besides handing over the registration file of telephone no.6494872 in the name of Ms. Tara Karki Ex.PW18/C;PW19 was Ramesh Chander Vaish, who deposed that in the year 2005 he was working as Advisor (Telecommunications) in Sanchar Bhawan, New Delhi and in that capacity was competent to remove from service a Junior Telecom Officer being his disciplinary authority. He deposed that he passed order Ex.PW19/A thereby State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.10/27 11 granting sanction for prosecution against accused HJ Singh vide order dated 22.02.2005; PW20 was Mangal Ram, who was Office Assistant in Commercial Section. He deposed that on 01.04.2002 he handed over the record to the CBI in regard to telephone no.6494872 in the name of Karki Tara Ex.PW20/A and Ex.PW20/B and he deposed that he also handed over another file Ex.PW18/B in the name of Suman Arora and proved the record Ex.PW20/E to Ex.PW20/G;
13. One of the key witness was PW21 Nirpal Singh. He deposed that from 1997 to 2000 he was posted as JTO in Nehru Place Telephone Exchange. Suffice to state that the witness supported the prosecution case as to the manner in which opening and closing of telephone connection was being done in the exchange and in regard to the usage of password by the accused and other JTOs including himself; PW26 was HC Chabbra who retired as AGM, MTNL, Nehru Place, New Delhi and deposed about computerisation of MTNL including the processing of the application for grant of new telephone connection / disconnection, commercial compliances and its dealing in accounts branch and also deposed about the process of opening and closing of accounts using the computer system. The witness was put the commercial file in regard to the four telephone connections and deposed about the addresses where the telephones were initially installed and as to when the telephone connections were disconnected and later revived during the incident and he lastly deposed about the time the same were disconnected and when the irregularities were brought to the notice of MTNL. I shall dwell on his evidence later on in this judgment ; PW31 was Raisul Hassan. He was working as SDE (5 ESS), Nehru Place Telephone Exchange during the State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.11/27 12 relevant time. He elaborated about the working of the Remote Switch Module besides Lucent technology of USA which was used for handling the operation during the relevant time. I shall dwell on his evidence later on in this judgment; PW32 Mata Prasad Tiwari was a Telephone Mechanic. His evidence is in consequential as he did not go to attend any complaint to the flat at Shahpur Jat, Delhi and showed ignorance about anything.
14. Two other key witnesses of prosecution were PW23 Chandrika Prasad, who was JTO in Nehru Place Telephone Exchange and PW24 Ishwar Chander Gaur, who was the Divisional Engineer of Nehru Place Telephone Exchange besides that of Sadiq Nagar Telephone Exchange and Asiad Village Telephone Exchange . Suffice to state that the two witnesses supported the prosecution case pinning the blame on the accused HJ Singh in maneuvering to command in the system thereby enabling use of the telephone for ISD facility.
CBI WITNESSES
15. PW9 was Inspector KK Varshney. He was associated in the investigation of this case alongwith PW30 Inspector SQ Ali. STATEMENT OF ACCUSED
16. On close of the prosecution evidence, each of the accused were separately examined as per Section 313 Cr.PC. Suffice to state that each of the accused persons stated in chores that they were innocent and have falsely implicated in this case. None of the accused preferred to lead any evidence in defence.
16A. I have heard Ld. Sr. PP for the State (CBI) and Ld. Defence counsel for the accused persons. I have perused the oral and documentary evidence on record.
State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.12/27 13EVIDENCE AGAINST HJ SINGH (A1)
17. The evidence of PW24 IC Gaur, the Divisional Engineer Telecom and PW31 Raisul Hasan, SDE posted at Nehru Place Telephone Exchange brings out that upgradation of the exchange happened in the year 1997 and the work load of Nehru Place Telephone Exchange was transferred to Sadiq Nagar Telephone Exchange in November, 1997 by starting Remote Switch Module (RSM). There is no denying the fact that A1 was posted in December, 1997 as the JTO at Sadiq Nagar Telephone Exchange and vested with the task of OCS work level of telephone numbers starting with the digits "625" and"649".
18. PW 23 Nirpal Singh supported by PW24 IC Gaur besides PW31 Raisul Hasan elaborated in their testimony that the OCS work contemplated opening and closing of the subscriber numbers in the sense that after allotment of landline numbers, A1 was entrusted with the task of making that connection work in the system of the exchange. It is in the evidence of the said witnesses besides PW5 Karamveer Singh that jumper letters used to be issued by outdoor section for opening and closing of landline connections that used to be referred to A1 in the ordinary course of business.
19. Before I proceed further in regard to the gravamen of the charges against A1, it would be worthwhile to understand the working of the system. It is in the evidence of PW24 Ishwar Chander Gaur and PW31 Raisul Hasan that the system was nick named 5 ESS supplied by Lucent Technologies Ltd, a US based Company in collaboration with Tatas. It was actually an exchange machine which used to handle operation of calls at a given point of time and PW31 State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.13/27 14 Raisul Hassan stated that it had the capacity to operate as many as 30,000 calls at a given point of time. The said witness explained that to carry out the OCS Work a password had been provided to A1 containing prefix and suffix. The prefix used to be allotted by the DET (in this case by PW24 Ishwar Chander Gaur) and it is in evidence that as soon as the authorized officer i.e. JTO logged into the system, it required a suffix to be given by the authorized officer i.e. JTO. In the instant case, the password was "rcvhjs" that was being used by A1. Each of the witnesses deposed in chorus that after applying suffix, password could only be known to the authorized officer i.e. JTO and it was not supposed to be divulge to anyone else. The working of the system was explained by Lucent Technologies Ltd. in its letter Ex.PW30/K dated 15.03.2002 in response to letter by SP, CBI Ex.PW30/J dated 13.03.2000 to the effect that once the user has changed his suffix on the first log in there was no way in the system to find out the password of that user. The point is that the system i.e. the computer system maintained the record of login on its hard disk which could be retrieved soon by login into the system and also by taking printout i.e. orig logs. It is in evidence that during the investigation the orig log were seized by the IO PW30 SQ Ali vide memo Ex.PW24/A (D4) on 27.07.2001 which was supplied by PW24 Ishwar Chander Gaur.
20. The whole case of the State (CBI) is built upon the orig logs from 30.04.98 to 02.05.1998 against A1. PW21 Nirpal Singh, and PW23 Chandrika Prasad posted as JTOs at Nehru Place Telephone Exchange on being shown the orig log Ex.PW21/A deposed that on 30.04.1998 it indicated that A1 had access to the system from 10.07 AM to 11.04 AM. During this period command was given whereby changed the State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.14/27 15 category of telephone No. 6491927 from STD barred to provide ISD facility and the relevant entry is at point Z1. They further deposed that as per the orig log Ex.PW21/A, A1 had access at 1338 hrs to the system by using the password "rcvhjs" whereby the category of phone no.6491090 was changed from STD barred to ISD shown at X2. Again they deposed that access was made by using the same password "rcvhjs" on 02.05.1998 at 1253 hrs whereby certain features of phone no.6491090 were changed, shown at point X1; and later category features of telephone no.6491927 were changed at 1254 hrs shown at point X2 in orig log Ex.PW23/E.
21. The evidence is that by giving the appropriate command, the outgoing restrictions were lifted so that the ISD calls are not recorded on the system. It may be indicated that orig logs Ex.PW21/A and Ex.PW23/A also indicate that access was made to the system using the same password "rcvhjs" whereby some new telephone nos.6251930, 6252981 and 26253127 were created or opened, while phone no. 6256868 and 6255859 had been deleted. PW23 Chandrika Prasad in this regard explained that as against the column for "detail of billing"
"No" was entered from his previous status "Yes" thereby enabling that the detailed billing will not register automatically on the system.
22. Therefore, the main circumstance against A1 is that it was he who was using the password "rcvhjs" and he alone could have access to the system; that no one else was supposed to know the password or was revealed the password and therefore the command in question could not have been given by anyone else other than A1. It bears repetition that there is another circumstance that is shown that A1 while doing State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.15/27 16 the OCS Work on 30.04.1998, 01.02.1998 and 02.05.1998 created or opened or deleted other new numbers as well during the ordinary course of business. The circumstance is that A1 must have done so in order to get the telephones installed for unauthorized conference facilities thereby benefiting himself and the allot tees of the telephones in question.
23. It must be said at the outset that there is no direct evidence against A1 except the circumstantial evidence that he had access to the system by using an exclusive password and therefore must have given commands thereby changing the category and features of two telephone numbers 6491090 and 6491927.Well, there is plethora of cases law delving into judicial functioning of appreciation of circumstantial evidence in a given case. In the cause celebre Sharad Biridhichand Sarda v. State of Maharashtra, (SC) ,1984 A.I.R. (SC) 1622 : 1984(4) S.C.C. 116 : 1984 Cri.L.J. 1738, their lordships of the Apex Court held as under:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. (2)the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.
(3) the circumstances should be of a conclusive nature and tendency.
(4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.16/27 17
24. With the said preposition of law at the back of our mind, I must state at the outset that the case of the prosecution was in tatters right from the very beginning and PW30 IO SQ Ali made no stone unturned to make a complete mess of it. Firstly, the offence was committed during May to August, 1998 and the heavy billings were detected in respect of the four telephone connections in the first week of September, 1998 itself when the fortnightly meter reading was taken. Vide Ex.PW30/F1 to Ex.PW30/F4 to the tune of about Rs.2 crores and all the telephone connections were disconnected vide disconnection orders Ex.PW24/C to Ex.PW24/F on 09.09.1998. Surprisingly, the information in regard to the alleged offences was given belated during which time it is not clear if any inquiries were conducted by the MTNL on its end and if done, no evidence is brought fourth. The FIR was registered on 15.01.2001, by which time crucial evidence had already been lost. It must be stressed that no evidence in the nature of orig log could be collected in respect of telephone nos.6496826 and 6494564. No evidence could be collected about the location and destination of the calls made during the period May to August, 1998.
25. During the investigation M/s. Lucent Technologies Ltd. vide letter Ex.PW30/K dated 15.03.2002 (D23) informed the SP, CBI that 5 ESS Switch System retained information on the hard disk in the nature of ""MM and AMA" Files "and that the files were retained in the system from three weeks to couple of months depending on the traffic and numbers of subscribers in the switch." The letter also specified that "the new records were overwritten on the old records and there was no way the information could be retrieved in regard to State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.17/27 18 the origin or destination of the calls from the hard disk of 5 ESS."
26.Ld. Sr.PP harped on the letter dated 26.08.2003 (D20) Ex.PW30/H by M/s. Lucent Technologies Ltd. that once the user has changed his suffix on the first login, there was no way in the system to find out the password of that user. I am afraid there are several practical doubts over the working of the system as a whole. It must be borne in mind that it was the initial phase of the computerization of the telephone network in Delhi. It is also in evidence that 5 ESS System enabling OCS was connected by Fiber Optic Network with Nehru Place Telephone Exchange as well as Asiad Village Telephone Exchange. PW24 Ishwar Chander Gaur and PW31 Raisul Hassan conceded the fact that the 5 ESS System could be accessed from any of the telephone exchange. PW21 and 23 did say that no formal training was given and to my mind, the Training becomes a vital exercise since it is not clear as to what security precautions were being taken while working on the system and in the scenario that A1 had no privacy while using or having to access to OCS System couple with the fact that the other staff members were knowing the working of the switch room, the system was vulnerable to having been hacked or misused by someone else. The conduct of the accused is not above suspicion but it bears in my mind that if A1 had exclusive access to the system and put command in respect of the category and features of the telephone connections, he could have done it at one go instead of putting the command at four different times. There is no evidence if the sanctity of the password was being maintained with utmost diligence.
State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.18/27 1927. The case of the prosecution is also put on the back foot in the light of evidence of PW24 Ishwar Chander Gaur who deposed in his examination in chief that the four telephone connections in question were not being controlled from Sadiq Nagar Telephone Exchange, which is contrary to the prosecution case. In fact in the same breath PW24 Ishwar Chander Gaur admitted in his cross examination that computer was accessible and in use by several staff members in the exchange. PW23 Chandrika Prasad caused further damage to the case of the State (CBI) when he stated that DET could also have access to the system despite the password provided to the JTOs and could carry out modifications in the orig log. This fact was also admitted by PW24 Ishwar Chander Gaur in cross examination stating that not only DET but Sub Divisional Engineer also could have access to the system as well as orig logs and work could be carried out from any terminal on the net working by using the password.
28. To sum up, though A1 had been using the password "rcvhjs" , it is difficult to discern that he alone could have had accessed to the system for giving the commands so as to change the category and features of the telephone connections. What further goes against the State (CBI) is that no technician from M/s. Lucent Technologies Ltd. was examined during the investigation nor produced during the trial so as to suggest that the system was full proof. No evidence has come forth in regard to the security features of the system. No evidence has come as to when orig logs Ex.PW21/A and Ex.PW22/E besides Ex.PW23/D were generated. No certificate is appended as State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.19/27 20 per Section 65B of the Indian Evidence Act alongwith orig logs. The authenticity of the orig log or the print out of the system Ex.PW21/A, Ex.PW23/E besides Ex.PW23/D also create doubt since it is the evidence of the witnesses themselves particularly PW31 Raisul Hassan that the 5 ESS System was not working properly. PW31 Raisul Hassan deposed that sometimes when the commands were given while working at the system, there used to be skipping in the sense that the commands were not reflected in the hard copy on taking out the prints of origlog. It is also in evidence of PW24 Ishwar Chander Gaur that the software was faulty during the period May to August, 1998 and therefore MTNL could not ascertain details of the heavy callers in the system.
29. Thus, the circumstances brought against the accused are not of conclusive nature and does not exclude every possible hypothesis in regard to use of the system. The evidence brought on the record create reasonable doubt the accused alone or exclusively being responsible for changing the category and the features of the telephones.
EVIDENCE ON CONSPIRACY VISÀVIS OTHER ACCUSED
30. On the law on conspiracy, I may just refer to observations in State v. Nalini (1999) (5) SSC 253, wherein the issue was discussed in reference to section 10 of the Indian Evidence Act and it was observed as under :
"In reaching the stage of meeting of minds, two or more persons share information about doing an illegal act or a legal act by illegal means. This is the first stage where each is said to State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.20/27 21 have knowledge of a plan for committing an illegal act or a legal act by illegal means. Among those sharing the information some or all may form an intention to do an illegal act or a legal act by illegal means. Those who do form the requisite intention would be parties to the agreement and would be conspirators but those who drop out cannot be roped in as collaborators on the basis of mere knowledge unless they commit acts or omissions from which a guilty common intention can be inferred. It is not necessary that all the conspirators should participate from the inception to the end of the conspiracy; some may join the conspiracy after the time when such intention was first entertained by any one of them and some others may quit from the conspiracy. All of them cannot but be treated as conspirators. Where in pursuance of the agreement the conspirators commit offences individually or adopt illegal means to do a legal act which has a nexus to the object of conspiracy, all of them will be liable for such offences even if some of them have not actively participated in the commission of those offences.
"One who commits an overt act with knowledge of the conspiracy is guilty. And one who tacitly consents to the object of a conspiracy and goes along with the other conspirators, actually standing by while the others put the conspiracy into effect, is guilty though he intends to take no active part in the crime."
31. At the outset, there is no iota of evidence or circumstance that the accused persons hatched a plan to commit an illegal act or that they were acting in concert or shared information or performed different acts in pursuance of criminal consipiracy actively or tacitly. Indeed, there is evidence to suggest that accused Sudhir Kumar (A3) had subscribed to phone no. 6491090 vide commercial documents Ex.PW26/B to Ex.PW26/C besides application form Ex.PW3/ and Ex.PW26/D and the OB for installation of the same at premises no.141B Shahpur Jat was issued vide Ex.PW26/A on 16.02.1996. It is also in evidence that telephone no.6491927 was allotted in the name of Mrs. Maninder Singh at house no.275, Sector 3, TypeIII, Sadiq Nagar, New Delhi vide documents Ex.PW26/E1 to E4 (D4). It is also in evidence State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.21/27 22 that telephone no.6496826 was allotted in the name of Man Singh vide documents Ex.PW3/9 to Ex.PW3/11 at his premises no.68B, DDA Flats, Shahpur Jat, New Delhi. So far as accused Suman Arora (A5) is concerned, telephone no.6491927 was allotted to her vide documents Ex.PW26/G1 to G5 (D6) besides Ex.PW3/13 at her residence 65B, DDA Flats, Shahpur Jat, New Delhi. It is indeed in evidence that all the four telephone connections were STD barred. However, what also comes in evidence is that on the shifting of work to Sadiq Nagar Telephone Exchange, these numbers were closed on 23.05.1997 as per the jumper letters Ex.PW5/1 to Ex.PW5/3 except the one in the name of accused Mohan Singh (A4) in respect of telephone no. 6496826 that was closed w.e.f. 18.09.1997. It appears that OB was issued on 18.02.1998 Ex.PW26/H4 in respect of telephone no. 6491090 in the name of accused Sudhir Kumar (A3) and OB dated 17.11.1997 Ex.PW26/K1 was issued in respect of telephone no.6491927 in favour of accused Suman Arora (A5). There is no evidence as to on which date the OB in respect of other two remaining telephone connections were issued.
32. Now, perusal of the telephone bills in respect of four telephone connections in question make an interesting reading. Telephone bill Ex.PW 6/B in respect of telephone no. 6491090 in the name of A3 shows that from 01.05.1998 to 30.06.1998 the billing was for Rs.37,73,509/ and bill Ex.PW 6/F for the period 01.07.1998 to 31.08.1998 shows the billing was for Rs. 22,39,040/ . These bills are towards call charges and as against the column for "trunk calls overseas" the amount is shown "NIL".
State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.22/27 23Surprisingly, prior to the above said period for three consecutive months bill Ex.PW 6/H shows the status of the phone as "cancel". Similar position is in regard to telephone no. 6494564 in the name of accused Suman Arora (A5) prior to 01.05.1998. The bill Ex.PW 6/J indicates the status of the billing as "unpaid". Similar position is found in respect of telephone no. 6491927 in the name of Mrs. Maninder Singh and the history of bill Ex.PW 6/L suggests that prior to 01.05.1998 the billing status is "cancel". The history of bill Ex.PW 6/M in respect of telephone no. 6496826 in the name of accused Mohan Singh (A4) indicates the status of billing as "unpaid". In each of the last three bills referred above, "trunk calls overseas" is shown as 'NIL. 'What follows is that there had been heavy billings in respect of the four telephone connections from 01.05.1998 to 31.08.1998 but prior thereto the bills had not been paid and, therefore, the telephone connections were lying dormant.
33. The inescapable conclusion that this court could draw is that there was no billing in respect of the four telephone connections prior to 01.05.1998 . In other words, the accused had not been using the telephone connections. No evidence has come forth that the telephone connections were actually installed and became operational from the residence of the accused persons after 23.05.1997. Ld. Sr.PP pointed out that jumper letter Ex.PW13/B was issued for disconnection of telephone connection no.6491090, in the name of accused Sudhir Kumar (A3) and then jumper letter was issued for restoration of the same number vide document Ex.PW13/C which indicates that it State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.23/27 24 was made operational on 19.04.1998. Surprisingly, the orig log Ex.PW13/C indicates that this number was opened by someone using the password "rcvnps"i.e, a different one than the one in use by A1. The State (CBI) has not answered as to who was the person concerned, who restored telephone no.6491090. No evidence has come forth as to who restored the other three telephone nos.6491927, 6496826 and 6494564 and on what date or time. Merely because A3. A4 and A5 were subscriber to the telephones in question, cannot make them conspirators by default.
34. The prosecution case is that the main kingpin of this entire series of offences was Shiv Shankar Mishra (A2). The prosecution case is that it is who conceived the plan with Mohd. Shafiq (A7) along with Mohd. Irshad (A8) and Mohd. Javed (A9) . Unfortunate for the case of the State (CBI), Shiv Shankar Mishra (A2) was discharged by the High Court of Delhi in Crl.Revision (P)161/08 vide order dated 17.09.2009 and during course of this trial no iota of evidence has come forth that would suggest his involvement in the crime. It would be a matter of common sense to understand that if the four telephone connections were running from premises no.141B, Shahpur Jat, New Delhi, there must have been four telephone cables coming from the distribution box/telephone pole connected to the first floor portion of premises no.141B, Shahpur Jat, New Delhi as shown in the site plan Ex.PW22/B. No iota of evidence has come on the record from any independent quarter except for the disclosure statement of Mohd. Shahid (A7) that the unlawful State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.24/27 25 conference facility was being run from the said premises. No evidence has come forth in regard to the manner in which the money was being collected through Hawala Channels for providing the unlawful conference facility. In an operation like this, how money exchanged hands has not been explained by the State (CBI). At the cost of repetition, there was inordinate delay in reporting the matter to the CBI during which time vital evidence had already been lost or destroyed. No iota of evidence is there on the record which would suggest that accused persons had caused destruction of evidence at the spot. No iota of evidence has come forth that there was any meeting of mind as amongst the accused persons and it would be repetition that no evidence has come forth as to how or in what manner the accused got benefited.
35. As a matter of fact as against A7 Mohd. Shafiq, the only evidence is his disclosure statement Ex.PW17/A without there being discovered any further fact pursuant there to make his statement admissible u/s. 27 of the Indian Evidence Act. The only evidence against A9 Mohd. Javed is that he had applied for a telephone connection no.6417331 as per commercial file no. 26/I to be installed at 141B Shahpur Jat that too in the year 199495. Again no evidence is brought on the record that would show that accused Mohd. Irshad and Mohd. Javed were providing unlawful conferencing. As regards accused Gian Parkash (A6), no evidence was collected that he was jointly in possession of flat no.141B, Shahpur Jat, Delhi alongwith his brother and no evidence was collected that the unlawful State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.25/27 26 conferencing was actually being run from the said premises.
36. There were several blemish on the part of the IO PW30 IO S.Q.Ali in the investigation of this case. He never visited Sadiq Nagar Telephone Exchange, Delhi to examine the switch room so as to ascertain how and in what manner the same was being operated. He did not collect any information if besides accused H. J. Singh, other JTOs were also deputed during the relevant time to work on the system. Statements of key witnesses i.e PW21, 23, 24 and PW31 were recorded in a very casual and unprofessional manner and that too quite belatedly. Surprisingly, PW38 admitted in his cross examination that he had visited 141B, Shahpur Jat, New Delhi prior to the disclosure statement of accused Mohd. Israr (A8) Ex.PW 22/A. Therefore the discovery of flat at 141B, Shahpur Jat, Delhi cannot be attributed at the instance of A8 ON 17.05.2004. It may be mentioned that as per the proscution the said flat was pointed out by the accused A7 in pursuant to disclosure statement Ex.PW 17/A on 29.05.2004 vide memo Ex.PW 17/C and the said evidence is simply trash. .The IO committed blunder by not even collecting any documents in regard to ownership of accused Gyan Prakash and for that matter his brother Padam Kumar in respect of the said flat. As a matter of fact, no incriminating evidence was found from the said flat.
37. In the said view of the discussion, accused HJ Singh (A1) is given the benefit of doubt and is acquitted. So far as remaining accused persons namely Sudhir Kumar (A3), Mohan Singh State (CBI) v. H. J. Singh & Ors CC NO. 43/11 Page No.26/27 27 (A4), Smt. Suman Arora (A5), Gyan Prakash (A6), Mohd. Shafiq (A7). Mohd. Irshad @ Raju (A8) and Mohd. Javed @ Akhtar Javed (A9) are concerned, the prosecution miserably fails to prove its case against them, hence they are acquitted.
38. Their personal bonds are cancelled and sureties stand discharged. File be consigned to the record room.
ANNOUNCED IN THE OPEN COURT TODAY: ON 21.10.2011 (DHARMESH SHARMA) SPECIAL JUDGE 03 (CBI) NEW DELHI DISTRICT NEW DELHI.
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