Bangalore District Court
C.C./22201/2006 on 26 August, 2015
IN THE COURT OF THE XVII ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE : BANGALORE.
-: Present :-
SRI.SABAPPA, B.Com., LL.B., (Spl)
XVII Addl.Chief Metropolitan Magistrate, Bangalore.
C.C.No. 22201/2006
Dated: 26th August, 2015
Complainant :
State by Special Police establishment,
Central Bureau of Investigation,
Economic Offices Wing,
Chennai.
[By learned Addl. Public Prosecutor, Bangalore.]
/ Versus /
Accused :
G.V.Rajesh S/o G. Venkatesh, Prop. of M/s.
Cyber Garden, No.2/4, Sri Janakiram
Complex, Bull Temple Road, Chamarapet,
Bangalore - 18. R/o No.30, 2nd Main, 5th
Cross, Azad Nagar, Bangalore - 18.
[Sri T.P.A. Advocate for accused No.3]
[Case split up against accused No.1
and 2 as per order dated 07.02.2015]
JUDGMENT
This is the charge sheet submitted by Deputy Superintendent of Police, CBI, EOW, Chennai, against the accused for the offences 2 C.C.No.22201/2006 punishable under Sections 20 and 20 A r/w Section 4 of Indian Telegraph Act, 1885, under Section 21, 25 (c) of Indian Telegraph Act, 1885, under Section 6 r/w Section 3 of Indian Wireless Telegraph Act, 1933, under Section 120 B r/w 420 of Indian Penal code.
2. Brief facts of the prosecution case is that, a search was conducted at the premises of M/s Cyber Garden, No.2/4, Sri Janakiraman Complex, Bull Temple Road, Chamarajpet, Bangalore owned by Sri G.V. Rajesh. During search at the above premises an illegal telephone exchange was busted and sophisticated electronic gadgets like VOIP gate way, Hubs, Router, Cisco Analog adapter, two FWT phone connections of M/s Bharathi Info Tel Ltd., vide mobile No.080-51508064 and 080-51203079 were also seized. The illegal telephone exchange was having two 512 kbps, DSL internet connections from M/s BTNL with IP addresses 61.95.204.105 and 61.95.204.106. During search an authorization certificated issued by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Hyderabad authorizing M/s Cyber Garden to provide internet telephony in Bangalore city under the band name of M/s M/s Vebtel Obconic Internet Protocol Pvt. Ltd., was also seized.
3 C.C.No.22201/2006
3. It is further case of the prosecution that, accused No.3 acted as dealer/franchisee for M/s Vebtel Obconic Internet Protocol Pvt. Ltd., and is providing outgoing international call service in Bangalore city area. Search was conducted in the presence of engineers of DOT. The setup seized from the M/s Cyber Garden Bangalore is an illegal telephone exchange which is facilitating clients for making international out going calls violating the provisions of law and unauthorized bypassing the licensed International Long Distance Operator's gate way. The caller is making an international call by merely dialing the local number of M/s Cyber Garden and through internet leased lines getting connected to a telephone in the foreign county. As a result the call detail appears as local call. The calls made through this illegal setup are beyond the scope of lawful monitoring by security/investigating agencies. It is further revealed that M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Hyderabad is holding a licence for internet telephony service under calls B category with the territorial jurisdiction of State of Andhra Pradesh i.e. service provide with class B license can only provide service within the Telecom Circle, state of Andhra Pradesh. M/s Vebtel Obconic Internet Protocol Pvt. Ltd., has paid Rs.20,00 lakhs as license fee in the form of Bank Guarantee to the DOT, Government of India to obtain the said 4 C.C.No.22201/2006 licence. For operating beyond the jurisdiction of one State (Telcom Circle), the company should have obtained a class A licence with all India jurisdiction by paying Rs.2.00 crores as licence fee to DOT, Government of India. It is further revealed that, M/s Vebtel Obconic Internet Protocol Pvt. Ltd., has been illegally operating in the state of Karnataka through M/s Cyber Garden and others i.e. without paying requisite license fee of Rs.2.00 crores and without authorization to operate beyond the State of Andhra Pradesh, thus M/s Vebtel Obconic Internet Protocol Pvt. Ltd., is illegally operating internet telephony in the state of Karnataka.
4. The details of equipment/materials seized and the observation mahazar containing the connectivity block diagram were referred to DOT for technical opinion, DOT in its expert opinion has clearly explained the purpose for which the equipment is being used and certified that the block diagram is being used for illegal patching of outgoing international calls with the caller merely dialing a local number and that this setup is violating the provisions of Indian law. The investigation further revealed that, documents like enrollment form, CAF, installation form, CDRs of two fixed wired telephones being used at M/s Cyber Garden, as well as the traffic through the internet connection with the above said IP addresses were collected from the concerned. Requisite documents to prove 5 C.C.No.22201/2006 that the installation of two telephones as well as two DSL internet connections at M/s Cyber Garden have been collected from M/s Bharati Info Tel Ltd., The loss to the government of India because of this illegal telecentre of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., at M/s Cyber Garden, is Rs.24.00 lakhs as certified by the officials of DOT.
5. During investigation a search was also conducted at the business premises of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Somajiguda, Hyderabad. This is the main hub centre of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., whose illegal telecentre M/s Cyber Garden has been raided earlier. Since lot of technical gadgets computer server and huge quantum of electronic records are involved, the services of AGEQD, Computer Forensic Division of GEQD, Ramanthapur, Hyderabad were availed. This division has a Mobile Cyber Forensic Kit which can be easily used at the place of search for making digital images of required digital records. The help of DOT Engineers was also availed while conducting the search in order to obtain on the spot help from their technical expertise. During search the contents of server/computer system at the central hub of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., were imaged on to the hard disk brought by the GEQD official, two CDs were marked as Q1 and Q2 by the officials of GEQD and were 6 C.C.No.22201/2006 enclosed with the search list. The contents of CD were hashed and the resultant Message Digest was recorded in the search list as enclosure. The files pertaining to the CDRs of international calls made from various telecentre to different telephone numbers abroad were collected/copied. The details of ledger account and telecentrs list were also retrieved from the computers of accused company. The computer in MS Excel files containing detailed list of names and addresses of their telecentres pertaining to various states have been found. This telecenter list indicates that M/s Vebtel Obconic Internet Protocol Pvt. Ltd., is having 51 franchises in Bangalore, 4 in Maharastra, 4 in Gujarath, 2 in Delhi, 13 in Kerala and 44 in Tamil Nadu and pondicerry. Apart from this M/s Vebtel Obconic Internet Protocol Pvt. Ltd., is also having about 25 telecenters in Andhra Pradesh. During search a certified copy of license possessed by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., which is category B class license was seized. This license was issued by DOT authorities for providing internet telephony service in the state of Andhra Pradesh. Some documents pertaining to supply of equipment by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., to its telecenters beyond Andhra Pradesh have also been seized. M/s Vebtel Obconic Internet Protocol Pvt. Ltd., was having a sophisticated server room with gate keeper server, proxy server, 7 C.C.No.22201/2006 billing server, a back up server and an internet pipe of 8 ipbs. The entire traffic from various telecenters within and outside Andhra Pradesh come to this server room and from here the same is distributed to various telephones around the world through internet. Every call made from the telecenter has to pass through this central hub at Hyderabad. It is a very sophisticated setup which was live and working. It was not possible to seize the servers as it would disrupt the services to the genuine customers within the Andhra Pradesh. However, required date has been imaged on the hard disk brought by GEQD officials. The down loading of required data and files was done by taking utmost care not to add additional load to the server or the gate keeper available in the hub center. GEQD team has brought with them a laptop and computer forensic software (encase) which enable them to retrieve the call detail reports as well as other data from the server. The data that has been retrieved/copied has been hashed using MD5 hashing algorithm. This procedure will authenticate the integrity of the data for verification at a future date. CDRs retrieval from the server clearly showed calls were made from different IP addresses pertaining to various telecenters in the country to the IP addresses of gatekeepers at the central Hub in Hyderabad. The CDRs also revealed the duration and times of calls made to various telephones 8 C.C.No.22201/2006 (PSTN) in different countries of the world. This clearly proved that, outgoing international calls were illegally patched from different corners of country to different PSTN lines abroad and the entire traffic was channeled through the gate keepers at M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Hyderabad.
6. The investigation further revealed that, M/s Vebtel Obconic Internet Protocol Pvt. Ltd., has paid only Rs.20.00 lakhs and obtained a calls B license valid for the state of Andhra Pradesh, but the accused company was illegally operating beyond its jurisdiction from different part of the country, thereby causing a loss of Rs.1.8 crores to the Government of India over and above the loss caused by illegal international calls made by various clients through the telecentres. As per license condition all the equipments that are required for internet telephony facility should be physically present within the jurisdiction of the licensee. However, the investigation revealed that the gadgets seized from M/s Cyber Garden were physically present beyond the jurisdiction of licensee, M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The main gadget FX- S gateway (Foreign Exchange Station M/s Vebtel Obconic Internet Protocol Pvt. Ltd., gate way) which was installed in the telecenter actually belongs to M/s Vebtel Obconic Internet Protocol Pvt. Ltd., and the same has been programmed with the IP address of the 9 C.C.No.22201/2006 gate keeper along with PIN and account number of the franchisee. This programming and configuration was done by Mr. Syed Yousuf of M/s Vebtel Obconic Internet Protocol Pvt. Ltd.,. Syed Yousuf is the Asst. Manager and working with M/s Vebtel Obconic Internet Protocol Pvt. Ltd., since November 2003. In his statement, he has stated about the issue of equipment to the telecenter after configuring the same at Hyderabad. This shows that the equipment was placed beyond the jurisdiction of the licensee and that the telecenters throughout the country acted as internet telephony PCOs for M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The connectivity between the telecenter and central hub at Hyderabad is a point to point interface over the public domain internet. This was made possible by the prior configuration of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., gate way with the IP addresses of the gate keepers of central hub at Hyderabad. The investigation further revealed that, as per internet telephony license condition the service provider can carry voice signals through internet by using one of the following means of connectivity.
1. Personal computer to personal computer within or outside India
2. A personal computer in India with a telephone outside India.
3. An IP based h.323/SIP terminal connected directly to IP Nodes to similar terminals within or outside India. 10 C.C.No.22201/2006
7. The M/s Vebtel Obconic Internet Protocol Pvt. Ltd., apart from jurisdictional violation, is also violating the above said connectivity condition and is illegally providing PSTN to PSTN connectivity through internet. This has been established by way of obtaining an expert opinion from DOT as well as through the statements of few customers of M/s Cyber Garden, record during investigation. The customers namely Sri K.Lakshminarayana Acharya, Smt. Rajeshwari and Sri Bhaktavatsala have clearly stated that they have made international calls from their telephones through M/s Cyber Garden by initially dialing the phone number of M/s Cyber Garden 080-51508064 and later dialing the digital password and the destination number. These customers were also provided with the bills/receipts issued by Sri G.V. Rajesh of M/s Cyber Garden against the deposits they have made. This clearly shows that a person sitting in his house by initially dialing a local number of the nearest telecenter of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., and then dialing the pass word and the destination number is able to make an international call. If the call details of the caller are generated, it will only have a local telephone number and there will not be any other evidence to say that an international call was made at that particular time from the caller's telephone. This itself is a dangerous proposition, apart from the 11 C.C.No.22201/2006 huge loss of revenue to the government of India, the security agencies will not be able to detect the international links of any suspect who is using this facility. This is therefore a serious thereat to the security of the nation. Apart from the loss of revenue because of non payment of requisite licence fee as well as loss because of the illegal business done by the telecenter, there is also a loss of revenue to licensed ILD holders, because the traffic which otherwise should have passed through legal ILDO gate ways is now being bypassed through internet via these telecenters. Hence, the licensed ILDO who pays Rs.100 crores to Government of India as licence fee is not getting his due business. Apart from this public sector undertaking BSNL and MTNL are also loosing revenue because of non payment of IUC, ADC as well as Universal Service Obligation (USO) fee. These illegal operators neither pay the service tax, income tax nor the variable license fee of 15% of the annual revenue generated. AS a result the Government of India is loosing heavy revenue because of these illegal setups. This is a perfect hi- tech crime wherein technology is misused by the intelligent criminals to make big buck by violating the licence conditions and the laws of the country.
8. During search conducted at M/s Vebtel Obconic Internet Protocol Pvt. Ltd., on 16.06.2005, a copy of the category A 12 C.C.No.22201/2006 application form duly filled by Sri Kusumba Sridhar, Managing Director has been seized. This shows that the Managing Director of the accused company wanted to regularize his business by obtaining a category A license after our raid at Bangalore. The statement of Rajkumar, Head, Direct sales, M/s Vebtel Obconic Internet Protocol Pvt. Ltd., and Sri Syed Yousuf, Asst. Manger of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., were recorded under Section 164 of Cr.P.C. as witness before the Court. Their statements clearly prove that, M/s Vebtel Obconic Internet Protocol Pvt. Ltd., has got various telecenters all over the country. They have also inpsect some of these premises including M/s Cyber Garden and handed over the equipment after configuring the same at Hyderabad, in the office of M/s Vebtel Obconic Internet Protocol Pvt. Ltd. Sri V.K. Omprakash, Manager of M/s Help Consult Networks, Chennai was examined. He stated that his firm entered into an agreement with M/s Vebtel Obconic Internet Protocol Pvt. Ltd., to become its marketing associate to market its products and services in Tamil Nadu. AS per the agreement they shall appoint distributors and act as master franchisee and corporate business associate for Tamil Nadu area. Statement of Sri R.Mohan, Manager, Marketing M/s Vebtel Obconic Internet Protocol Pvt. Ltd., incharge of Tamil Nadu has also been recorded wherein he mentioned that 13 C.C.No.22201/2006 there are about 25 telecenters working under his marketing area in Tamil Nadu. One Sri Ramagopal, Director, DOT (vig), Chennai he has brought out M/s Vebtel Obconic Internet Protocol Pvt. Ltd., provided permanent path for internet telephony between franchise's IP address and the gate way IP address located at the main hub at Hyderabad. He has also mentioned in the inspection report that, the equipment at telecenter are programmed at the hub center at Hyderabad and sold to the telecenters for patching the calls illegally. He has also shown the block diagram of the set up found in these telecenters. The actual loss of revenue from these telecenters could not be calculated, as the central Server/gateway hub at Hyderabad is retaining the CDRs details only for the last 14 days. Hence, the actual quantum of traffic flown through could not be exactly ascertained. However, from one telecenter alone i.e. M/s Cyber Garden, the loss was estimated as Rs.24.00 lakhs. The DOT officials have also stated in their statement that, had this illegal setup not been prevalent, the calls would have gone through the legal channels owned by the licensed Telecom operators generating the income for Government of India. They also certified that the licensed operator as well as government of India together loose approximately Rs.6 per minute w.e.f. May 2005 and Rs.7 pr minute prior that for every international calls. Hence, the total loss would 14 C.C.No.22201/2006 be Rs.7 multiplied by number of called minutes, which would be very huge amount as seen from the quantum of traffic that was flowing through M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The expert opinion also mention about the licence violations by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., as an internet service provider. They have to pay the Performance Bank Guarantee of Rs.2.00 lakhs per circle. They are operating in Tamil Nadu, Karnataka, Pondicherry and Kerala without paying RS.10.00 lakhs as the license fee. For operations in all circles the Bank Guarantee of Rs.1.00 crore is to be given to the Government of India, which was not done by the accused company. The accused and their company have entered into a criminal conspiracy to cheat Government of India by violating various provisions of Indian Telegraph Act, 1885 and India Wireless Telegraphy Act, 1933. Hence accused have committed above offences as stated in the charge sheet.
9. After receipt of the charge sheet, this court gone through the documents and materials available on record and come to the conclusion that, there are sufficient materials to proceed against accused, hence this Court the took cognizance against the accused for the alleged offences as stated in the charge sheet and registered the case in 3rd register and issued summons to the 15 C.C.No.22201/2006 accused. After receipt of the summons accused appeared before the court through their respective counsels and filed the bail application under Sec.437 of Cr.P.C. It is objected by the prosecution the Court has gone through both sides contentions of the bail application and objection, and passed necessary orders, accused enlarged on bail by executing self bond as well as surety which is compiled by the accused. Copy of charge sheet served on accused under Section 207 of Cr.P.C. Later on accused have filed discharge application under Section 239 Cr.P.C. it is objected by the prosecution, on 02.04.2010 this court has passed an order on the discharge application and same is dismissed, again accused went in Criminal Revision Petition No.215/2010 before District Court and same is dismissed on 24.06.2014. Later on this case proceed against the accused. Thereafter, this court framed the charge against the accused. The charges were read over and explained to the accused in the language known to them. They have pleaded not guilty and claims to be tried. Hence, the case posted for prosecution evidence. In the meantime accused No.1 and 2 counsel filed application under Section 329 (c) of Cr.P.C., it is objection by the prosecution. This Court gone through the materials relied by the accused No.1 and 2 and passed necessary order that, the application filed by the accused No.1 and 2 under Section 329 (c) is 16 C.C.No.22201/2006 allowed, case split up against accused No.1 and 2 and proceed against accused No.3. This Court registered the case against accused No.1 and 2 in C.C.No.4295/2015.
10. In order to prove the case against the accused the prosecution examined PWs.1 to 17 and got documents marked at Ex.P.1 to Ex.P.33 and MOs 1 to 6. After closure of prosecution evidence, this Court recorded the statement of accused under Sec.313 Cr.P.C, accused denied the version of the prosecution witnesses and submitted no evidence. Therefore, the case is posted for arguments.
11. Heard the arguments on both sides.
12. Now, the points that arise for my consideration are as under -
1. Whether the prosecution proves beyond all reasonable doubt that Accused No.1 in the name of accused No. 2 Company joined hands with accused No.3 and agreed to commit an offence and thereby conspired together and accused No.3 owned Cyber Garden an illegal telephone exchange consisting gadgets like VOIP gateway, Hubs, Router, Cisco Analog Adapter, two FWT phone connections of M/s. Bharati Info Tel Ltd., and the illegal exchange was having two 512 KBPS DSL internet connections from M/s. BTNL with IP addresses 61.95.204.105 and 61.95.204.106 and A-2 Company had authorized cyber garden to provide internet connection in Bangalore City under the brand name M/s. VOIP Pvt. Ltd., of which 17 C.C.No.22201/2006 you accused No.1 was dealer providing international call services in Bangalore City and you were facilitating illegal telephone exchange for making international outgoing calls, violating the provisions of Law and unauthorizedly by-passing the licensed international long distance operator's gateway by merely dialing the local number and accused No. 2 Company run by you accused No.1 was holding a license for telephone service under Class-B category within the jurisdiction of Andhra Pradesh, but without obtaining Class-A license and without having All India jurisdiction, you have provided illegal telephone service by installing FX-S gate way and violated the connectivity condition causing loss of revenue to the department and thereby committed an offence punishable under Section 20 and 20-A r/w Section 4 of Indian Telegraph Act and Section 21, 25[c] of the Indian Telegraph Act and Section 6 r/w Section 3 of the Indian Wireless Telegraph Act?
2. accused No.1 and 2 authorized A-3 to run a telephone internet service in the name of accused No. 2 Company and you conspired together to commit an offence and by running a cyber garden with the above said equipments, accused No.3 was providing illegal telephone exchange and you accused No.1 and 2 holding Class-B category license which could provide or operate only within Andhra Pradesh, but you have provided accused No.1 to operate and facilitate clients for making international outgoing calls violating the provisions of Law and unauthorisedly bypassing the international long distance operators gateway by merely dialing the local number and through internet list licensed got connected the telephones in foreign country and caused non-payment of IUC, ADC and USO fee to 18 C.C.No.22201/2006 the B.S.N.L. and MTNL and thereby you A-3 have caused a loss of Rs.23.00 lakhs to the Government of India by illegal means and cheated the Government of India and you A-
3 thereby committed an offence punishable under Sec. 120-B r/w Section 420 of the Indian Penal Code?
3. What order?
13. My answers to the above points are as under:
Point No.1 : In the Affirmative
Point No.2 : In the Affirmative
Point No.3 : As per final order, for
the following reasons :
REASONS
14. Points No.1 and 2 :- The Learned APP vehemently argued and submitted that, the accused No.1 being Managing Director of accused No.2 company, accused No.3 proprietor of Cyber Garden Bangalore. Accused No.1 has obtained 'B' class license to facilitate international calls to the customers. The office of accused No.2 is situated at Hyderabad. Accused No.3 has acted as dealer of accused No.2 company. Accused No.1 and 3 have conspired with each other by set up the equipments to facilitate the customers for making international out going calls by violating the provisions of law and unauthorizedly bypassing the licensed international long distance operator's gate way. It is deposed by the 19 C.C.No.22201/2006 P.W.1 to 17 as well as material objects and documents clearly goes to show that, accused No.3 in order to cause loss to the Government has provided international calls to the customers by violating norms prescribed under license. The allegations stated in the charge sheet is proved by the prosecution beyond all reasonable doubts, the evidence of the prosecution witnesses as well as documents and materials objects are established that, the accused No.3 has committed the alleged offences as stated in the charge sheet. Hence, accused may be convicted in the interest of justice and equity.
15. The learned counsel for the accused vehemently argued and submitted that, as per documentary evidence relied by the prosecution marked at Ex.P.30 - FIR, there is no whisper about this accused at the time of registering FIR as this accused is involved in this case. There is no complaint by the Telecom Department or any other 3rd party that, this accused has conspired with accused No.1 and facilitates the international calls without obtaining valid license from the competent authority. As per FIR case was registered against one Arun and another, but I.O. has not enquired the said persons as well as he has not tried to secure any evidence or material documents against those persons. Even the prosecution officials have not obtained any search warrant to 20 C.C.No.22201/2006 conduct the search on the premises of cyber garden. Though, the prosecution has conducted the search in this cyber garden premises and prepared the mahazar as well as recovered material objects. However, prosecution has not examined independent witnesses who are present at the time of conducting mahazar. The articles which are seized on the basis of mahazar are not properly packed and sealed by the I.O. It is admitted by the prosecution witnesses during the course of cross-examination. More over, the prosecution has not obtained signature of the leading party on the material objects. I.O. has no authority to conduct search in cyber garden, I.O. conducted search in cyber garden without obtaining permission of the Court. The I.O. has not conduct the personal search of the leading party. The material objects are opened till filing of the charge sheet. More over, I.O. has not obtained any permission from the Court to keep these articles in their custody till filing of the charge sheet. The prosecution has not able to show any document that, the accused has obtained building for rent or he was the owner of the property etc. The alleged seizure conducted by the I.O. is doubtful and it is not acceptable one. The evidence of the prosecution witnesses as well as contradiction and omissions clearly noticed that, the prosecution has not able to prove the guilt of the accused beyond all reasonable doubts. Moreover, the prosecution is 21 C.C.No.22201/2006 not made accused as the Director of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The documents which are marked through prosecution witnesses at Ex.P.1 to 10 are true copies, those are not admissible in the evidence. These documents are disputed by the accused during course of evidence, in spite of it, prosecution is not able to furnish original documents. The prosecution has not made any videopgraph or photograph at the time of search conducted in cyber garden. There are no documents forthcoming from the prosecution that,, this accused has committed the said offence. The prosecution has not able to obtain documents by the other hand. The I.O. has not followed C.B.I. Manuals, he has also not complied guidelines. The evidence of prosecution witnesses - P.W.2 and 3 speaks about the license only. P.W.4 has not produced any authorization letter issued by the higher officers. He has prepared inspection report after six months of search list of the property. Ex.P.14 does not bear the signatures of the parties. He further submits that, as per EX.P.15 seizure conducted on 06.04.2005, the inspection report prepared by the I.O. on 02.12.2005, he has recorded the statement of witnesses on 21.09.2005. P.W.5 - panch witness has not identified the accused. P.W.6 is executant of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., P.W.7 - seizure witness of the documents at Hyderabad. He has deposed about the 22 C.C.No.22201/2006 panchnama conducted at Hyderabad. But the CDs are not available on record. P.W.8 is also stated the same facts. P.W.9 to 11 are the independent witnesses, they are also not identified the accused, though the documents marked through these witnesses does not shown on which number called by the customer. Those documents are not supported the prosecution case. During course of cross- examination of these witnesses, they admitted that, they have not identified the accused, they are not able to furnish any documents to show that, they have purchased calling cards from the accused. P.W.13 and 14 are also not able to identity the accused. P.W.15 to 17 are the official witnesses, they deposed about register of case, recording statements of prosecution witnesses and collected the documents. During course of cross-examination, the official witnesses have given admission indicates that, they have not properly conducted the investigation. The omissions and contradictions of prosecution witnesses as well as documents are clearly goes to show that, the prosecution is not able to prove the guilt of the accused beyond all reasonable doubts. Hence, accused may be acquitted in the interest of justice and equity.
16. The learned counsel for the accused has relied upon the following decision -
23 C.C.No.22201/2006
1. (2012) 4 SCC 722, between Govindaraju @ Govinda Vs. State by Sriramapuram Police Station and another.
2. (2011) 11 SCC 724, between Mustkeem @ Sirajudeen Vs. State of Rajastan
3. (2003) 5 SCC 499, between Salim Akhtar @ Mota Vs. State of UttarPradesh.
4. (2003) 11 SCC 527, between Suchand Pal Vs. Phani Pal and Another.
5. (2008) 15 SCC 430, between Krishnan VS. State Rept. By Inspector of Police,
6. (2009) 10 SCC 401, between Dhanpal VS. State by Public Prosecutor, Madras.
17. I have gone through the evidence of prosecution witnesses as well as documents marked in this case. It is case of the prosecution is that, the accused No.3 is the owner of building cyber garden at Bangalore. He was running illegal international telephone connections without obtaining proper license as well as he has obtained connections from M/s Vebtel Obconic Internet Protocol Pvt. Ltd., situated at Hyderabad. In order to substantiate the above facts, the prosecution has adduced the evidence of P.W.1 to 17 and got marked Ex.P.1 to 33. Now, I am going to discuss the evidence of P.W.1. He has deposed about the issuance of license in favour of accused No.2 company. The prosecution has got marked EX.P.1 to 11 through this witness. These are the application forms submitted by the M/s Vebtel Obconic Internet Protocol Pvt. Ltd., as well as certificate of incorporation as accused No.2 company is registered before Registration Authority. Clarification letter issued 24 C.C.No.22201/2006 by accused No.2 company to Telecom Department. The letter issued by the chartered accountant and authorized the accused No.1 as he was Managing Director to look after the affairs of the company. Ex.P.7 and 11 are the license agreement entered between Telecom department as well as accused No.2 company. These documents as well as oral testimony of P.W.1 clearly disclosed that, the accused No.2 company has obtained 'B' class license from the Telecom department. It is undisputed fact that, as per oral testimony of P.W.1 clearly noticed that, the accused No.1 being the Managing Director of accused No.2 company has obtained 'B' class license. As per terms and conditions mentioned in Ex.P.7 and 11, both the parties are abide by the same. If any one of the party violated the terms and conditions, shall approached the proper authority i.e. Arbitration Telecom Authority at New Delhi. The evidence of P.W.1 as well as documents as discussed above, one thing is clear that, the accused No.1 Managing Director has obtained 'B' class license by depositing necessary fee as per terms and conditions mentioned in EX.P.7 and 11. He has every right to do business within the jurisdiction of Andhra Pradesh, as per conditions imposed in the license.
18. At the same time, prosecution has examined another witness - P.W.2. He has deposed that, as per request of C.B.I., he 25 C.C.No.22201/2006 has submitted the documents with covering letter marked at Ex.P.12. He has also identified the documents which are already marked through P.W.1 at Ex.P.1 to 11. He also speaks about the 'B' class license obtained by the accused No.1 as Managing Director of accused No.2 company.
19. The learned counsel for the accused No.3 has cross- examined both the witnesses. He has tried to elicit that, the accused No.3 is not involved in the present case. However, the cross-examination noticed that, as per clause 10 of the license can employ or appoint agents or service. The object issuance of license to accused No.2 for providing internet service including internet telephony for the accused No.2 company. P.W.1 deposed that, it is within the scope of license. Except this, nothing has been elicited to show that, the accused No.3 has not obtained connection from M/s Vebtel Obconic Internet Protocol Pvt. Ltd., P.W.2 also deposed the same set up facts, which was stated by the P.W.1. The learned counsel for the accused No.3, draw the attention of this Court that, the documents which are marked through P.W.1 and 2 are not original documents. However, I have gone through documents, it is noticed that, the Telecom office is secured these documents as true copies from the original documents. As such, in my opinion, the objection raised by the accused counsel is unsustainable under law. 26 C.C.No.22201/2006 As per Section 63 (2) of Indian Evidence Act, "Copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy and copies compared with such copies". In this case, documents marked at Ex.P.1 to 11 are certified true copies as such these are admissible under Evidence Act. The evidence of P.W.1 and 2 are not much more important to speak about the involvement of accused No.3 in this case. These two witnesses deposed about the procedural aspects as well as license agreement and applications and other clarification from the M/s Vebtel Obconic Internet Protocol Pvt. Ltd., These are not material facts to discuss in detail the participation of the accused No.3 in this case.
20. Now I would like to refer the evidence of P.W.3. He is one of the Deputy Director General of Telecom department. He deposed about the documents which are already marked through P.W.1 and 2. This witness also testified by the accused counsel. However, he was not given any material admissions. The evidence of P.W.1 to 3 as well as materials documents marked through these witnesses disclosed that, accused No.1 being Managing Director of accused No.2 company, has obtained 'B' class license to run international calls. The evidence of this witness is also not possible to attach any value about the involvement of accused No.3. At the 27 C.C.No.22201/2006 most, these three witnesses deposed about the procedural aspects as wells as terms and conditions of the license agreement etc.
21. Now I would like to refer the evidence of P.W.4, as he was Director, Vigilance Telecom Department, Chennai. He has deposed that, as per instructions of his higher officers, he accompanying with the CBI officials to visit the cyber garden situated at Bull Temple Road, Chamarajpet, Bangalore, he has not attended the CBI Office, he has stayed in BSNL guest house. He accompanied CBI officials at the time of conducting search. This witness as well as CBI officials are searched the premises of cyber garden and came to know that, illegal set up equipments was connected by accused No.3 for connecting international calls. They have prepared the search list at the spot as per Ex.P.13, which is carbon copy. The learned counsel for the accused raised objection to mark carbon copy. However, this carbon copy marked subject to objection. In the meantime, the prosecution has produced the original search list. It is marked at EX.P.13 (b). P.W.4 further deposed that, they have seized some documents and equipments, at that time accused No.3 was present and he has identified the accused, but he has not remember the name of the accused. He do not remember whether the accused No.3 has signed in the search list or not. He further deposed that, himself and one Sri 28 C.C.No.22201/2006 Ramakrishna was present at the time of preparing search list and they have put signatures on the search list. Thereafter they have prepared inspection report and submitted it to CBI. It is marked at Ex.P.14 and he identified the signatures marked at Ex.P.14 (a) &
(b). The inspection report says that, they have identified illegal set up and examined how much could be the approximate loss of Rs.23 lakhs is caused to the Government. Before preparing inspection report, they have called for the information from the service providers and examined why it was taken and how it was used. The users were making calls to the two telephone numbers given by this person which in turn connected to a gateway which will receive the information of the distant and telephone number and then dial out and connect. They have made some test calls and requested the customers who have used this service to tell that, they were using for, they have said that, they are used for making international calls which confirmed that, it is illegal. The clarification report marked at Ex.P.15. It discloses that, there was a virtual connection between the equipment in cyber garden and the equipment at M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Hyderabad.
22. This witness testified by the accused counsel and tried to elicit that, the accused No.3 was not tried to put up illegal connections. However, the admissions are not disclosed that, this 29 C.C.No.22201/2006 accused was not involved in the crime. As per say of P.W.4, it is clearly noticed that, when he was went to the cyber garden, they found accused No.3 has taken one broad band connection and two telephones from Bharathi Airtel and has connected them to M/s Vebtel Obconic Internet Protocol Pvt. Ltd., gateway using other equipments. They found system is working and they asked him how he is using it. The customers call two telephones and then give a password to get access to make an international call which will be dialed out by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., gateway. VOIP gate way will use broad band connection to make this call and connect it to the customer. As per I.T. Act, 1985 it is illegal. He has also stated that, at the time of search, they have obtained material objects marked at M.O.1 to 6.
23. P.W.4 in the cross-examination stated that, he has not taken any assistance of Bangalore Telecom Office. He do not know the door number, but it is cyber garden. He further deposed that, he was not able to recall the name of the building, he do not know who is the owner of the building, he was not able to say how many shops are existing in the building, he has no knowledge whether CBI has taken signature of neighbours on the mahazar. He did not ascertain the lady how is she connected to accused No.3. He do not remember slips are not pasted on the MOs. P.W.4 admitted that, 30 C.C.No.22201/2006 the materials objects which are marked are not packed and sealed. He further admitted that, there is no signatures of the raiding officials as well as panchas on the MOs. may be these types of articles are available in other places also. They have not written any letter to the manufactures of the articles. P.W.4 voluntarily stated that, it has been given to accused No.3 by M/s Vebtel Obconic Internet Protocol Pvt. Ltd. P.W.4 further admits that, in his statement it is not mentioned about clarification report. They have not produced any document to support the say of witnesses who are called for enquiry. He further admits that, his statement is recorded on 21.09.2005 after 5 months of search. The remaining suggestions are denied by this witness.
24. As per the evidence of this witness as well as search list, inspection report and material objects, one thing is clear that, the I.O. has seized the material objects as well as recovered the documents marked at Ex.P.13 to 15 from the possession of accused No.3 as on the date of search. It is no doubt, the P.W.4 is working Director Vigilance, Telecom Office, accompanying CBI Officials as well as ascertain the illegal set up put by the accused No.3. It is observed in the search list as well as material objections marked through this witness indicates that, this accused No.3 was put up the illegal machines and equipments to run illegal international out 31 C.C.No.22201/2006 going calls without any valid license. There are some minor contradictions and omissions in respect of packing and sealing of material objects itself does not mean that, the officials witnesses are not present and recovered the material objects as per Ex.P.13
(b). In general, any I.O. has seized the material objects in the presence of witnesses as well as prepared the mahazar, he has to pack the material objects as well as put the seal and obtained the signatures of persons who are present on the spot. The document marked at Ex.P.13 (b) original search list clearly noticed that, this P.W.4 as well as P.W.5 were present at the spot for conducting seizure mahazar by the I.O and they have put their signatures as a witness to the search list. Mere the witnesses are not able to speak about the procedure adopted by the I.O. itself does not mean that, these two witnesses are not present at the time of conducting seizure mahazar as well as obtaining material objects from the possession of the accused No.3. At this stage itself, it is made it clear that, if the accused No.3 is not running illegal international out going call connections in the cyber garden, it is not possible to recover the material objects from the possession of the accused No.3.
25. At the same time, the another document which is marked through P.W.4, Ex.P.15 (b) net work diagram of M/s Vebtel 32 C.C.No.22201/2006 Obconic Internet Protocol Pvt. Ltd., services provisions as well as Ex.P.13 (b) annexure A disclosed that, the material objects No.1 to 6 are seized in the presence of accused No.3. He is also one of the witness to these documents. P.W.4 and P.W.5 were present at the spot and prepared the search list and put the signatures. Annexure B marked at EX.P.13 (d) noticed that, the I.O. has prepared rough sketch connectivity diagram set up found on Janakiram Complex, Bull Temple Road, Chamarajpet, Bangalore and the equipments put by the accused No.3 as well as how he has to connect the materials to make international calls. Another point to be noted here, the documents marked through P.W.4 at Ex.P.14 along with customer agreement form submitted by the accused No.3 before Bharathi Infotel Ltd., disclosed that, this accused No.3 has clearly mentioned the name, phone number, address and other details. It is noticed that, he has submitted the application form obtaining connection from Bharathi Infotel Ltd. As per the records available in this case, clearly noticed that, Bharathi Infotel Ltd. has provided equipments to accused No.3 to set up illegal connections as well as calls details records of the accused No.3 annexed to Ex.P.15 (b) clearly noticed that, accused No.3 obtained illegal international calls connections to the cyber garden. The evidence of P.W.4 and 5 clearly shows that, 33 C.C.No.22201/2006 they were present at the time of search conducting at cyber garden as well seized material objects and other documents.
26. P.W.5 being retired Chief Manager of Vijaya Bank, deposed that, he has accompanying CBI as per request he has present and put the signature on EX.P.13 (b). During course of cross-examination, he has deposed that, he is not able to identify the accused No.3, but after recording seizure mahazar, he has put his signature. He further stated that, he do not remember the address where they were went for search, he do not remember specific item of the machine, he do not remember specific documents which are seized. Except this, nothing has been tried to elicit by the counsel for accused, as he was not present at the time of conducting seizure mahazar as well as obtaining material objects from the possession of the accused No.3. As such, in my opinion, as per evidence of P.W.4 and 5, one thing is clear that, these witnesses are present as per the instructions of CBI Officials. The I.O. has prepared the search list in the presence of these witnesses and they have put signatures in the search list. It is clearly noticed that, in the presence of P.W.4 and 5, CBI I.O. prepared the search list and seized the documents and obtained material objects. 34 C.C.No.22201/2006
27. At this stage, I would like to refer another document marked through P.W.6 i.e. Ex.P.17 certificate issued by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., in the name of cyber garden which is signed by accused No.1 on 30.01.2005. This document is also seized by the I.O. from the possession of accused No.3. The learned counsel for the accused tried to convince that, this document never disclosed that, the cyber garden situated at Bangalore as well as accused No.3 obtained this document. On this point, I would like to mention, if the accused No.3 is not holding this document, it is not possible to recover the same from the possession of accused No.3. The prosecution is able to furnish the certificate issued by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., in the name of cyber garden. It is stated by the prosecution witness P.W.6 that, this certificate issued by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., in the name of cyber garden.
28. The counsel for accused No.3 tested P.W.6. However, he is not able to elicit that, this accused No.3 is not obtained this document. P.W.6 specifically deposed that, he was working as Marketing Consultant in M/s Vebtel Obconic Internet Protocol Pvt. Ltd., M/s Help Consultancy Network Pvt. Ltd. was the distributor of his company and he identified the Xerox copy of MOU dated 06.02.2004 executed between M/s Help Consultancy Network Pvt. 35 C.C.No.22201/2006 Ltd. and M/s Vebtel Obconic Internet Protocol Pvt. Ltd., He also identified the certificate issued by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., to telecentres in the name of cyber garden marked at EX.P.17. This certificate is an authorization to market the products. He has identified the signature of accused No.1 marked at Ex.P.17 (a). Delivery challan and serial number of telecords marked at Ex.P.18 and he was not aware of other documents. As per license agreement, accused No.2 company is based on Hyderabad and it has to be operated in Andhra Pradesh only.
29. During course of cross-examination, he has deposed that, Ex.P.18 is seized by CBI in the office of M/s Help Consultancy, Chennai and he was present at that time. He further deposed that, in Ex.P.17 address of cyber garden is not mentioned. Ex.P.17 does not say which state it belongs to, it does not show who is owner of cyber garden. P.W.6 further deposed that, he has not seen Ex.P.17. He admits that, Ex.P.17 is seen for the first time today. He do not know who has prepared EX.P.18. This witness deposed that, he was seen the Ex.P.17 for the first time, however, he identified the document, discloses which is signed by accused No.1 and it has been issued in favour of cyber garden. This aspect has not been disputed by the counsel for the accused.
36 C.C.No.22201/2006
30. As per the material documents at Ex.P.13 to 18 as well as oral testimony of P.W.4 to 6, one thing is clear that, the I.O. has seized material objects as well as recovered material documents from the possession of accused No.3 at cyber garden and at that time accused No.3 was present and he has put the signature in seizure mahazar as well as search list. The I.O. has admitted that, he is not able to ascertain the building, which the cyber garden is situated belongs to the accused or not. On this point, I would like to mention, there are no documents to show that, the building is belongs to accused No.3. The said admissions itself does not mean that, this accused No.3 was not run the business in the said premises, though the prosecution is not able to collect any materials that, the said building was belongs to accused No.3 or not. However, the material documents as well as materials objects are collected in the cyber garden situated at Bull Temple Road, Chamarajpet, Bangalore, in the presence of prosecution witnesses. One thing is clear that, the accused No.3 was running business in the cyber garden premises. It is not material fact that, the said building belongs to accused No.3 or some body to discard the evidence as well as material objects recovered from the possession of accused No.3.
37 C.C.No.22201/2006
31. At the same time, I would like to mention, the prosecution has specifically stated in the charge sheet that, accused No.3 has set up illegal equipments in the cyber garden as well as he was facilitating customers for making international out going calls violating the provisions of law and unauthorized bypassing the licensed international long distance operator's gate way. On this point, the material documents marked at Ex.P.17 discloses that, the cyber garden has obtained certificate from M/s Vebtel Obconic Internet Protocol Pvt. Ltd., as well as he has to bypassing international calls through M/s Vebtel Obconic Internet Protocol Pvt. Ltd., gate way and facilitated the customers for making international out going calls with a low price. At the same time, it is noticed that, accused No.2 company is holding license for internet telephone service under 'B' class license within the territorial jurisdiction of State of Andhra Pradesh only. Accused No.2 company has paid Rs.20.00 lakhs fee to the Department of Telecom. All these facts are admitted by the prosecution witnesses P.W.1 to 3 during course of evidence. At the same time, it is not disputed by the other side. It is further case of the prosecution that, as per investigation, accused No.2 company has been illegally operating in the State of Karnataka through cyber garden without paying requisite license fee of Rs.2.00 crores and without authorization to operate beyond 38 C.C.No.22201/2006 the State of Andhra Pradesh. On this point, the evidence of prosecution witnesses as well as materials which are seized from the possession of accused No.3 as per Ex.P.13 (b), one thing is clear that, accused No.3 has illegally set up the machines and tried to facilitating the customers for making international out going calls with a low price.
32. Now, I would like to refer the evidence of P.W.7 and 8. These two persons are working as Assistant Government Examiner in the office of GEQD, CSFL, Hyderabad. Both the witnesses deposed that, they have accompanying with CBI Officials and went to the office of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Somajjigudda, Hyderabad. After reaching the said place, they were shown some servers where the data entry is available and the relevant data has been identified and particular data has been burnt into CDs and hash values of both the CDs were generated and those hash values were also handed over to CBI. At that time, CBI officials have prepared the mahazar which is marked at Ex.P.19, signatures of the witnesses marked at Ex.P.19 (a) and (d). The said mahazar contains 5 files seized and 2 CDs are prepared by them. One entire file Swift Vebtel card shown to them, it is marked at Ex.P.20. Another entire file containing photocopy of Vebtel certificates subject to objection by the accused counsel, it is marked 39 C.C.No.22201/2006 at Ex.P.21. The CDs mentioned in EX.P.19 of Sl.No.6 and 7 were taken by them and case was registered in their lab with a case No.CCH-134/2005. The case was allotted to P.W.8 for further analysis and report. They have prepared the report and submitted the same to CBI and same is marked at Ex.P.19 (b), signature of the P.W.8 marked at EX.P.19 (c). They have examined the CDS and prepared the report, which is marked at Ex.P.22. The signatures marked at Ex.P.22 (a) and (b). The covering letter marked at EX.P.23. As per the report, P.W.8 stated that, the data related to telephone calls to various countries like Oman, USA, Saudi Arabia etc. The total talk time, telephone numbers where the calls are terminating and IP addresses at call origin etc. The data was present in the form of excel files. The actual content was given in the annexure.
33. Both the witnesses are cross-examined by the counsel for the accused. However, he is not able to elicit anything to disbelieve that, these two persons are not present at the time of conducting mahazar by the I.O. at Hyderabad. Moreover, these two persons are experts in analysis questionnaires documents as well as other data, same are available on the record. They expressed their opinion in the report about how the international calls diverted by the Vebtel to the foreign countries. The way of cross-examination 40 C.C.No.22201/2006 conducted by the accused counsel is not helpful to the accused to disbelieve the evidence of these two witnesses as well as documents.
34. Now, I would like to refer the evidence of P.W.12. He deposed that, he was working as Assistant Divisional Engineer Telecom in Vigilance and Telecom Monitoring cell, department of Telecom, Chennai. He was instructed to accompanying with CBI at Hyderabad for search operation as the place was M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Somajigudda, Hyderabad, who was holding an internet service providing license only for Andhra Pradesh, but those commercial services were found in Karnataka and Pondichery. Search list prepared by the CBI officials, it is already marked at Ex.P.19 and his signature marked at Ex.P.19 (f). In search list, one data regarding call details also seized which indicates commercial services. Call details were sent to FSL for ascertaining the misuse of services.
35. This witness is testified by the accused counsel by way of cross-examination. He has deposed that, he did not remember the correct address, CBI officials have not recorded his statement. The call details records are not available. He admits that, the call details records which was sent to FSL was not mentioned in the 41 C.C.No.22201/2006 mahazar. Remaining suggestions put by the accused counsel is denied by this witness. The evidence of this witness noticed that, he was present at the time of conducting search, at Hyderabad in the office of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The seizure mahazar already marked at Ex.P.19. As, I have already discussed about the report of FSL in the evidence of P.W.7 and 8. This evidence noticed that, this official was present at the time of search conducted by the I.O. Though he has not able to recollect the address as well as statement recorded by the CBI, itself does not mean that, he was not present at the time of conducting seizure mahazar by the I.O. The evidence of this witness is also supported the case of prosecution that, the prosecution has recovered the instruments in the office of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., it is sent to FSL, it is tested by the Government Examiner, Hyderabad and report the same. It is already marked as well as examined the GEQD CSFL as witness in this case. The evidence of this witness is corroborated with other officials witnesses evidence.
36. Now, I would like to refer the evidence of P.W.14, he deposed that, he was working in M/s Vebtel Obconic Internet Protocol Pvt. Ltd., doing internet telephony. Accused No.1 is M.D. of M/s Vebtel Company and one Satyanarayana was working as vice president of the said company. They were predominantly in 42 C.C.No.22201/2006 AndhraPradesh, Karnataka and Tamil Nadu. In Bangalore they do not have any office. They were having cyber garden in Bangalore. Normally they sell talk times to make ISD calls by walking into the tele centers. It requires equipment and it is called FXS. M/s Vebtel Obconic Internet Protocol Pvt. Ltd., will give equipments. Normally cyber cafe need not bring any equipment, but if they bring their own equipments also the technical department can configure it to make out bound ISD calls. Bangalore cyber café had brought equipments, they configures FXS configuration. They have central server in Hyderabad which will authenticate the call. Bangalore cyber café used to purchase talk times from M/s Vebtel Obconic Internet Protocol Pvt. Ltd. They were work as per instructions of accused No.1.
37. This witness is also testified by the accused counsel. At that point of time, he has deposed that, he do not know after 2005 what happened in Vebtel company. He is not able to say in which year, month and date cyber garden has purchased talk time from Vebtel Company. He was not part of the technical, he was incharge of sales department. Except this, nothing has been elicited to disbelieve that, this witness is not working in M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The evidence of this witness noticed that, cyber garden has purchased some talk times from Vebtel 43 C.C.No.22201/2006 Company, there was connection between Vebtel company and cyber garden as per the equipments brought by the cyber garden configured as FXS configuration by M/s Vebtel Obconic Internet Protocol Pvt. Ltd., The evidence of this witness as well as other material documents and evidence of prosecution witnesses clearly reveals that, the accused No.3 has purchased talk times through Vebtel Company. The material objects which are marked through prosecution witnesses as well as documentary evidence clearly indicate that, this accused No.3 has purchased talk time by putting equipments in the cyber garden, Bangalore. Though, there are minor contradictions and omissions in the evidence of prosecution witnesses, it is not material to discord the entire case of the prosecution as well as documentary evidence.
38. Now, I would like to refer the evidence of P.W.9 to 11. All these persons are independent witnesses examined by the prosecution in order to show that, these three persons are residing in the different area nearby cyber garden, Bull Temple Road, Chamarajpet, Bangalore. They have obtained connection from the cyber garden and called their sons and daughters who are staying in foreign countries. In order to prove the same, documents as well as oral testimony of P.W.9 to 11 discloses that, they have obtained connection from cyber garden to their landline telephones, they 44 C.C.No.22201/2006 have to deposit some amount in the cyber garden and then they are able to obtain connection from the cyber garden.
39. P.W.9 categorically stated that, he has obtained connection from cyber garden, Bull Temple Road, Chamarajpet. Normally the price was very low, as such he took connection from cyber garden, they have displayed the rate as Rs.3 per minute. He has deposited Rs.500 to 600/- in that shop. One Rajesh was giving connection to their landline. He was not able to identify the said Rajesh due to lapse of time. He further deposed that, after payment of deposit amount they used to give password. When he wants to talk to his son, cyber garden used to connect the telephone to his landline. He submitted 10 telephone bills issued by cyber garden, all are together marked at Ex.P.24. Seizure memo prepared by the CBI, marked at Ex.P.25. Signature marked at Ex.P.25 (a). As per EX.P.24 destination as USA, but he talk to Canada.
40. P.W.10 is also stated the same set up facts, as she has to use to call UK and USA. She do not know the owner of the cyber garden. Later on CBI people told her that, one Rajesh is the owner of cyber garden. The call rate was Rs.2 per minute. She used to call UK and USA, one daughter at staying in UK and another daughter at USA. She used to obtain the calling cards of RS.1,000/- for 2 45 C.C.No.22201/2006 times. She used to talk to her daughter from her land line phone with connection form cyber garden. Cyber garden used to give one code number and they used to dial the code number along with her daughters' number directly. First she took Rs.1,000/- package, after completing of that package, she took another Rs.1,000/- package, in that package she talked about Rs.50-60, she was not able to call her daughter, then she went to cyber garden and expressed her inability to call her daughter, then they gave a cheque of Rs.900+ for balance amount, she deposited the cheque to her son's account in S.B.T., Girinagar branch. The certified copy of account opening form of her son marked at Ex.P.26 and balance statement of account marked at Ex.P.27. The balance amount was credited to her son's account. She was not able to identify the person who is present before the Court.
41. This witness is also testified by the accused counsel. At that point of time, she has deposed that, cyber garden has not issued any bills in respect of purchasing calling cards. She do not remember whether she submitted the telephone bills to the CBI in respect of calls to UK and USA through cyber garden, she do not remember the cheque number issued by cyber garden etc. This cross-examination is not take away the entire evidence of this witness, through she expressed her inability to remember the 46 C.C.No.22201/2006 calling cards, cheque number, itself does not mean that, she was not purchased calling cards. Another interesting point to be noted here that, the cheque issued by cyber garden deposited by P.W.10 to her son's account and same is credited to accounts of her son. It is clearly noticed that, she used to purchase calling cards from the cyber garden.
42. P.W.11 is also stated the same set up facts as stated by P.W.9 and 10. He is also handed over one visiting card issued by cyber garden which is marked at Ex.P.28. CBI prepared receipt memo which is marked at Ex.P.29. This witness also testified by the accused counsel. He has stated the same answer as stated by the P.W.10. He is also expressed that, he was not able to identify the person who present before the Court. He has not produced any documents to show that, he has purchased the calling cards from cyber garden etc.
43. On going through the evidence of P.W.9 to 11, one thing is clear that, these three persons are purchased the calling cards from the cyber garden by depositing advance amount. The cyber garden has given password as well as connected directly to the land line of these persons. These persons are talk to their sons and daughters who are staying in foreign countries. The material 47 C.C.No.22201/2006 documents marked at Ex.P.24 to Ex.P.29 are the bills issued by the cyber garden as well as seizure memo, certified copy of account opening form, statement of account, visiting cards, receipt memo etc. These documents reflected that, on the deposit of amount by P.W.9 to 11, cyber garden has issued calling cards and given specific password. It seems that, these persons are directly purchased the calling cards from cyber garden and used the same.
44. Though the learned counsel for accused tried to submit that, the prosecution is not able to try to take any documents from the other hand, I do consider the arguments submitted by the accused counsel. However, the documents which are available on record as well as oral testimony of Ex.P.9 to 11, clearly reveals that, these persons are used the calling cards issued by cyber garden. It is never disputed by the accused during course of trial. Moreover, the evidence of P.W.10 noticed that, she purchased calling cards at Rs.1000/-, but she was not able to talk the same, she has approached the cyber garden and cyber garden has issued the cheque and same was deposited to her son's account, later on remaining balance amount is credited to the account of her son. It seems that, if the cyber garden has not issued any calling cards, it is not necessary to issue cheque in favour of P.W.10. The account extract marked at Ex.P.27 clearly reveals that, an amount of 48 C.C.No.22201/2006 Rs.930/- is credited to the account of one Sri Aravind, who is none other than the son of P.W.10. This account extract indicates that, the cheque No.024796 issued by the cyber garden is in favour of P.W.10, same is credited to the account of Sri Aravind. This fact indicates that, P.W.10 is able to recover the remaining balance of calling cards amount through a cheque.
45. Another document marked at Ex.P.28 visiting card clearly discloses the address of the cyber garden situated at Janakiram Complex, Bull Temple Road, Chamarajpet, Bangalore. It is furnished by the P.W.11 during course of investigation. It is recovered by preparing the receipt memo by the I.O. Both the documents marked at Ex.P.28 and 29 are reveals that, these documents are in the possession of P.W.11, same is collected by the I.O. and produced before the Court. The evidence of P.W.11 is corroborated with these documents. The testimony of P.W.9 to 11 and documents marked at Ex.P.24 to 29 are substantiated the case of the prosecution, the witnesses stated as they were purchased the calling cards and used the same by calling to their children who are residing in different countries. As such, in my opinion, merely these three witnesses are shown some ignorance about identification of accused, itself does not mean that, they have not purchased the calling cards as well as used the same. Due to lapse 49 C.C.No.22201/2006 of time, they have not able to identify the accused. However, they have clearly stated that, they went to the cyber garden and purchased the calling cards as well as they are able to identify the place now also. As such, in my opinion, the evidence of these three persons along with evidence of P.W.7 and 8, one thing is clear that, this accused is facilitated to the connection for making international out going calls without valid license.
46. Now, I would like to refer the evidence of P.W.13, 15, 16 and 17. These are the official witnesses deposed about conducting search at Hyderabad as well as cyber garden, Bangalore. They have also recovered the documents as well as MOs from the possession of accused No.3 which are already marked as MOs 1 to 6 as well as Exhibit P series. They have also identified the accused who is present before the Court as he was present at the time of conducting search at cyber garden, Bangalore. P.W.16 deposed that, he has collected the documents as well as inspection report, bills of Help Consultant Network, letter along with customer agreement form between accused No.3 and M/s Help Consultant Network, FSL report which are marked as Ex.P.31 to 33 in this case. P.W.17 deposed that, he has received the case papers and proceed further investigation and recorded the statements of all the 50 C.C.No.22201/2006 witnesses as well as collected the documents from various departments and submitted the charge sheet.
47. All these 4 witnesses are cross-examined by the accused counsel. At that point of time, P.W.13 - P.I. deposed that, the articles which are seized at cyber garden, Bangalore, he has not packed and sealed. Some telecom officials have packed and sealed the articles, but he do not remember their names. In Ex.P.19 who has packed and sealed the articles is not mentioned. He do not remember whether his signature was found on the articles or not. He was not seen those articles today. Except this, nothing has been elicited to believe that, he was not present at the time of conducting mahazar by the I.O.
48. P.W.15 deposed during course of cross-examination that, he is having authorization to conduct search. After conducting search, he has handed over the authorization letter to P.W.16. He has prepared the search list which is already marked at Ex.P.13 (b). He further deposed that, he has not visited the place which is mentioned in the FIR. Before conducting search, he has not obtained permission from the Court. He has made personal search of the participants of the search. He has not collected any documents regarding building belongs to whom. Equipments were 51 C.C.No.22201/2006 packed, labeled and obtained signature of witnesses, but he do not remember it is sealed or not. He has seen the articles and it is not in a packed condition, at that time it was packed. He admits that, any of the witnesses signature is not found on the MOs. He further admits that, in Ex.P.13 (b) it is not mentioned whether articles are sealed. He was not aware that, these articles are available else where. All the equipments are put in one box, on that box he has obtained signature of the witnesses. This fact is not mentioned in search list. That, box is not before this Court. The remaining suggestions put by the accused counsel denied by this witness.
49. On this point, the learned counsel for the accused draw the attention of this Court that, though this witness deposed about search as well as recovered articles from the possession of accused, however the articles which are recovered are not packed and sealed as per procedure contemplated under Cr.P.C. I do consider the arguments submitted by the accused counsel. However, there is some ignorance of the witnesses as stated in the cross- examination, itself does not mean that, he was not recovered the articles from the possession of accused. It is no doubt, there is no signature found on the MOs. But the P.W.4 and 5 has categorically identified the articles as well as deposed that, they were present at the time of search conducted by the I.O. as well recovered the 52 C.C.No.22201/2006 documents and material objects. Merely the building document is not collected by the I.O. itself does not that, this accused is not running cyber garden in the said premises.
50. It is no doubt, as per FIR marked at Ex.P.30 the name of the accused is not found in the FIR, it discloses the name of one Arun and others. During course of investigation, CBI officials found that, there was a illegal international out going calls operated by the present accused. As such, they have searched the premises and collected the equipments and other documents. Merely the accused name is not found in the FIR, itself does not mean that, he was not committed any offence. It is no doubt, as per FIR, the name of the accused is not mentioned. I.O. has clearly stated that, there are no materials to proceed against the accused as mentioned in FIR. Such being the case, it is not proper to ascertain any more details against the accused. As such, some minor omissions on the part of this witness, it will not helpful to the accused to disprove the case of the prosecution.
51. P.W.16 is one of the I.O. testified by the accused counsel by way of cross-examination. At that point of time, he has deposed that, he has given authorization letter to P.W.15 as per Section 165 of Cr.P.C. He has not inspected the cyber garden, he 53 C.C.No.22201/2006 has not collected any documents to show the building belongs to accused or not. He further admitted that, FIR is regarding against Arun and others. The accused name is not mentioned in the FIR. He has visited the place mentioned in the FIR i.e. Arun, it is found that, he was a diploma student, he purchased SIM card and he lost it along with cell phone and it appears that, the same was suspected by VTM of DOT as being misused for illegal routing of calls. He has also visited the place mentioned in FIR i.e. Dolphin Business Centre and found no such establishment is found. He has submitted report in this regard. As there is no time for obtaining permission from the court, hence he has conducted the search as per provision of Section 165 of Cr.P.C. on the same day. P.W.14 has handed over the articles. He is not able to recollect the articles are sealed. Now none of the articles are sealed. He denied that, he has not conducted any mahazar at the time of collecting documents, he has not drawn any mahazar at the time of collecting the inspection and opinion report. He admits that, he has not submitted inspection and opinion report to the Court immediately. He voluntarily stated that, he submitted it along with charge sheet.
52. The documents Ex.P.31 is bills of M/s Help Consultant Networks total in No.150 together marked at Ex.P.31. These bills issued by the M/s Help Consultant Networks in favour of Vebtel as 54 C.C.No.22201/2006 per MOU marked at Ex.P.16. This indicates the M/s Vebtel Obconic Internet Protocol Pvt. Ltd., has appoint the Help Consultant Networks as its market product and services in the territory mentioned in Annexure - 1. The same is supported by the evidence of P.W.6, the management trainee deposed that, these bills are issued by the Help Consultant Networks in favour of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., the accused never disputed about these bills. Another document at Ex.P.32 and Ex;P.33 are the reply letter issued by Bharati Infotel Ltd., as well as customer agreement form submitted by the accused noticed that, the accused No.3 has specifically mentioned the name, place in Ex.P.33. On the basis of this customer agreement form Bharati Infotel Ltd., has supplied the materials to the cyber garden. The same is set up by the accused No.3 and started to provide international out going calls to customer.
53. The testimony of this witness noticed that, there is no circumstance reveals that, this witness has not received the articles as well as inspection report from the Telecom office as well as other officials witnesses. This witness being the additional S.P. he was authorized to other officials to conduct search. He has received search report, documents and MOs. The entire cross-examination of accused counsel noticed that, there are no any other circumstances 55 C.C.No.22201/2006 reveals that, this witness has not received the articles as well as documents as per search list.
54. The learned counsel for the accused testified the P.W.17. He has deposed that, when he has took up further investigation of this case, MOs were in Malkhana branch. He has not examined MOs. They were not in a sealed condition. On filing of charge sheet they have submitted MOs and documents to Court. He has not inspected the cyber garden, but he has seen the said place. He has not collected the title documents as to whom the said building belongs to. He was also stated the same facts, as stated by the P.W.15 and 16, As per FIR case registered against Arun and others. He admitted that, accused No.2 Company consists of 3 Directors, 1 MD and 1 Chairman. He further admitted that, he has not made other 3 Directors and chairman as accused. The remaining suggestions are denied by this witness. On the evidence of this witness, it is clearly noticed that, he has took up further investigation of the case, collected the MOS and documents and recorded witnesses statements and submitted the charge sheet against accused.
55. In oral all considering the facts, evidence and exhibits relied by the prosecution, one thing is clear that, the accused No.3 56 C.C.No.22201/2006 has set up illegal telephone connections in cyber garden and he has facilitated the customers to make international out going calls by dialing local number. It further noticed that, though, the prosecution is not able to collect the documents in respect of building belongs to accused or not, it is not the material question to decide the entire case of the prosecution. The prosecution has conducted search in cyber garden, Bull Temple Road, Bangalore, the P.W.4 and 5 who are present at the time of conducting mahazar categorically deposed that, in their presence I.O. has conducted seizure mahazar and collected the material documents as well as MOs. On the basis of evidence of prosecution witnesses as well as documents, I would like to mention that, this accused No.3 without having any license, he has facilitated the customers to make international out going calls service in Bangalore City area.
56. At the same time, the prosecution has made allegation against the accused that, this accused No.3 is acted dealer of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Hyderabad. At this point, the material documents as well as oral testimony of P.W.6 and 14, it is clearly noticed that, this accused No.3 has obtained illegal telephone connections to cyber garden through M/s Vebtel Obconic Internet Protocol Pvt. Ltd., and facilitated the customer to make international out going calls with a cheaper rate. At the same time, 57 C.C.No.22201/2006 the prosecution has made further allegation that, the accused No.1 being M.D. of M/s Vebtel Obconic Internet Protocol Pvt. Ltd., holding license for internet telephone service under 'B' class category. It is supported by the evidence of prosecution witnesses P.W.1 to 3 as well as Ex.P.1 to 12. These documents clearly reflected that, there was an agreement license between Telecom Department as well as accused No.1 and 2 in respect of license for internet telephone service under 'B' class category. As per documents, it is noticed that, accused No.1 has deposited Rs.20.00 lakhs as license fee in the form of Bank Guarantee to Telecom Department. As per telepnony license agreement, accused No.1 is having every right to provide calls facility within the limits of Andhra Pradesh. At the same time, the other materials on record as well as evidence of P.W.6 and 14 noticed that, this accused No.3 has set up illegal phone connections to the cyber garden through M/s Vebtel Obconic Internet Protocol Pvt. Ltd., Equipments which are seized from the possession of accused No.3 marked in this case as MOs 1 to 6, as well as oral testimony of P.W.4 and 5 clearly reveals that, these equipments are seized by the I.O. in their presence.
57. The learned counsel for the accused pointed out at the time of arguments that, though the prosecution has seized MOs, but these are not properly sealed and obtained the signatures of 58 C.C.No.22201/2006 the persons who are present at the relevant point of time. I do consider the arguments canvassed by the accused counsel. However, he never denied that, accused No.3 was not in possession of these material objects at the time of seizure mahazar. Minor omissions and contradictions on the side of prosecution witnesses, itself is not possible to disbelieve that, the material objects which were seized from the possession of accused is not belongs to him.
58. At the same time, the prosecution further alleged that, during course of investigation, the prosecution is able to collect the material documents marked through P.W.9 to 11 who are independent witnesses categorically deposed that, they have obtained calling cards from the cyber garden as well as they have made international out going calls with connections of cyber garden. Though, the P.W.9 to 12 during course of evidence deposed that, they are not able to identify the accused, but they are able to identify the place where they were purchased the calling cards. One of the witnesses has categorically deposed that, he has knew the name of person Rajesh, but he is not able to identify the accused. The other officials witnesses evidence as well as documents clearly noticed that, this accused No.3 is running cyber garden and he has facilitated the customers to make international out going calls from cyber garden.
59 C.C.No.22201/2006
59. At the same time, the evidence of P.W.7 and 8 who are Government Examiner, categorically deposed that, they have collected the materials at Hyderabad, same is testified by them and came to know that, the materials were set up in M/s Vebtel Obconic Internet Protocol Pvt. Ltd., as well as they have made facilitate to make international calls from the cyber garden. The learned counsel for the accused draw the attention of this Court in respect of seizure mahazar as well as admissions given by the prosecution witnesses during course of trial. I do consider the same. However, merely prosecution witnesses admitted about the materials objects are sealed or not, itself does not mean that, they are not present at the time of conducting mahazar.
60. The learned counsel for accused relied upon the decision reported in (2011) 11 SCC 724, between Mustkeem @ Sirajudeen Vs. State of Rajastan. Wherein it is held that -
"Criminal Trial- Circumstantial Evidence - Recovery of crime articles/incriminating articles/ other articles - Recovery of alleged weapons- witness of recovery turned hostile - another witness admitted that, the signatures were obtained on memos at Police Station - Witnesses were residing at distance from place of recovery - prosecution failed to establish as to why none of the local persons living close by were called to be witnesses."60 C.C.No.22201/2006
61. The facts which are discussed in the above respect judgment as well as the facts and circumstances of the present case, are not one and the same. In the above respect judgment, their lordship discussed about one of the recovery witness turned hostile as well as another witness admitted the signatures obtained by the I.O. in the police station. On that circumstances the Hon'ble Apex Court held that, recovery panchnama create doubt. But in the present case, the P.W.4 and 5 who are official witnesses stated that, they called by the I.O. at the time of conducting seizure memo, in their presence I.O. has seized the material objects as well as documents and they have put the signatures on the mahazar as well as identified the documents and MOs. As such, in my opinion, the decision relied by the accused counsel is not applicable to the facts of the present case on hand.
62. The learned counsel for the accused relied on another decision reported in (2003) 5 SCC 499, between Salim Akhtar @ Mota Vs. State of UttarPradesh. Wherein it is held that -
"Search and seizure - recovery of incriminating article - recovered article (pistol) not sealed on the spot - effect - The fact that the pistol alleged to have been recovered at the instance of accused was not sealed on spot coupled with the fact neither its number nor its make etc. to fix its identity was mentioned in the recovery memo or in the FIR, held, raised considerable doubt 61 C.C.No.22201/2006 regarding the factum of recovery - Evidence Act, 1872, Section 27."
63. In the present case, the P.W.4 deposed that, he do not remember after MOs were seized, they have packed and put the seal. It is true that, the material objects which are now marked are not sealed. At the same time P.W.5 one of the official deposed that, after prepared mahazar, it is read over to him and he has put the signature. But he is not able to identify the person who was present in the shop during the time of search. It seems that, the P.W.4 and 5 are present at the time of conducting seizure mahazar by the I.O. and they have put the signature at the spot. The learned counsel for the accused never put the suggestion to P.W. 5 that, the material objects which are seized by the I.O. has not packed and sealed. The suggestion made by the accused counsel, as the CBI officials have not seized any machines and documents on that day is denied by the P.W.5. Though the P.W.4 shows some ignorance in respect of packed and sealed material objects, itself does not mean that, these two persons are not present at the time of seizure memo prepared by the I.O.
64. The facts and circumstances discussed in the above respected judgment as well as the facts and circumstances of the present case on hand are not one and the same. Moreover, in the 62 C.C.No.22201/2006 above respect judgment their lordship discussed that, as per the say of the accused the material object (pistol) seized at the spot, but it was not sealed. On that point, Hon'ble Apex Court raised considerable doubt regarding the factum of recovery. But in the present case, both the witnesses i.e. P.W.4 and 5 categorically stated that, they were present at the time of seized machines and documents in the presence of accused. Therefore, in my opinion, the decision relied by the accused counsel is not applicable to the facts and circumstances of the present case.
65. The learned counsel for accused has relied upon the decisions reported in (2003) 11 SCC 527, between Suchand Pal Vs. Phani Pal and Another. And (2009) 10 SCC 401, between Dhanpal Vs. State by Public Prosecutor, Madras. Wherein it is held as under-
"If two views are possible from the evidence available on record, then the view favorable to accused has to be drawn and benefit of doubt has to be extended to the accused."
66. I agree with the principles laid down in the above respected judgments. The facts and circumstances discussed in the above respected judgments and facts and circumstances of the present case, are not one and the same. Hence, the above respected judgments are not applicable to the facts of the present case.
63 C.C.No.22201/2006
67. On going through the entire discussion of oral testimony of prosecution witnesses and documents and as well as MOs in the above, I am of the opinion that, the prosecution is able to establish the case against the accused for the alleged offences as stated in the charge sheet. Though, there are minor contradictions and omissions in the evidence of prosecution witnesses is not take away the entire evidence and documents. In every criminal case, it is not possible to expect the evidence as it is as stated in the 161 Statement as well as contents of the documents marked through the witnesses. The allegations as stated in the charge sheet against the accused is brought out from the mouth of prosecution witnesses as well as documents. The material witnesses P.W.4 to 11 as well as other official witnesses' evidence clearly indicate that, this accused No.3 has obtained illegal connection from M/s Vebtel Obconic Internet Protocol Pvt. Ltd., for making international out going calls. The material objects as well as documents at Ex.P.1 to 33 are clearly speaks that, the accused No.1 being the Managing Director of Accused No.2 Company has obtained 'B' class license from Telecom Department, later on he has facilitated this accused No.3 by putting equipments and connect the international out going calls at cyber garden, Bangalore. The evidence of P.W.9 to 11 who are the beneficiary under this accused No.3 are categorically 64 C.C.No.22201/2006 deposed that, they are obtained calling cards as well as password used the same. Though, they have unable to identify the accused No.3 before this Court, due to lapse of time. It is human tendency, any incident happened, it is seen by the person who is present at that point of time, later on he is not possible to recollect the same, as it is due to lapse of time. As such, in my opinion, stray admissions of non-identifying the accused No.3 by the witnesses will not possible to hold that, this accused was not committed the offences. Moreover, the official witnesses, panch witnesses, IOs are clearly identified the accused No.3 as on the date of conducting search as well as recovered the documents and materials objects from the possession of accused. All the prosecution witnesses are supported the case of prosecution as well as documents are corroborated with the oral testimony of prosecution witnesses. The evidence and documents clearly discloses that, there is conspiracy between accused No.3 as well as accused No.1 in order to facilitate international out going calls as well as their intention to cheat the Government by putting the illegal equipments in the cyber garden and facilitate the same to the customers. Therefore, I come to the conclusion that, the prosecution is able to establish the guilt of the accused, beyond all reasonable doubts. Hence, I answer the above points No.1 and 2 in the Affirmative.
65 C.C.No.22201/2006
68. Point No.3 :- In view of the foregoing reasons and in the result, I proceed to pass the following order.
ORDER
Acting Under Section 248(2) Cr.P.C
accused is found guilty for the offences
punishable under Sections 20 and 20 A r/w
Section 4 of Indian Telegraph Act, 1885, under Section 21, 25 (c) of Indian Telegraph Act, 1885, under Section 6 r/w Section 3 of Indian Wireless Telegraph Act, 1933, under Section 120 B r/w 420 of Indian Penal code and he is convicted.
For hearing on sentence.
[Dictated to the Stenographer, transcribed by her, transcript corrected, signed and pronounced by me in the open Court, this the 26th day of August, 2014] [SABAPPA] XVII Addl.Chief Metropolitan Magistrate, Bangalore.
-: ANNEXURE :-
I. List of witnesses examined for the prosecution :-
PW 1 : Smt. Ritu Pandey PW 2 : Jayath Kumar PW 3 : B. Suresh Krishna PW 4 : S.N. Ramagopal PW 5 : K.S.Ravindranath 66 C.C.No.22201/2006 PW 6 : R. Mohan PW 7 : M. Krishna PW 8 : P. Krishna Shastry PW 9 : K. Lakshmi Narayan Aacharya PW 10 : Smt. RAjeshwari Thulajappa PW 11 : Bhaktha Vatsala PW 12 : Ramakrishna Majety PW 13 : T. Santhosh kumar PW 14 : Raj kumar PW 15 : Murugesan PW 16 : Syed Bazlullah PW 17 : Ajay Kumar II. List of witnesses examined for the defence :- -NIL- III. Documents exhibited on behalf of the prosecution: Ex.P.1 : Certified copy of application for ASP license Ex.P.1(a) : Signature of C.W.5 Ex.P.2 : Certificate of Incorporation of VOIP Ex.P.2(a) : Signature of C.W.5 Ex.P.3 : Clarification letter dated 07.08.2003 Ex.P.3(a) : Signature of C.W.5 Ex.P.4 : Letter issued by Reddy & Co., to VOIP Ex.P.4(a) : Signature of C.W.5 Ex.P.5 : Letter issued by Ministry of Finance to Commnr. of Income Tax Ex.P.5(a) : Signature of C.W.5 Ex.P.6 : Resolution of VOIP Ex.P.6(a) : Signature of C.W.5 67 C.C.No.22201/2006 Ex.P.7 : License dated 26.09.2003 Ex.P.7(a) : Signature of C.W.5. Ex.P.8 : Another License agreement dt. 06.02.2004 Ex.P.8(a) : Signature of C.W.5 Ex.P.9 : Certified copy of application Ex.P.9(a) : Signature of C.W.5. Ex.P.10 : Certified copy of Resolution of VOIP Ex.P.10(a) : Signature of C.W.5 Ex.P.11 : License agreement for internet service including internet telephone dated 06.02.2004 Ex.P.12 : Covering letter dated 18.10.2005 Ex.P.12(a) : Signature of P.W.2 Ex.P.13 : Search List Ex.P.13(a) : Signature of P.W.4 Ex.P.13(b) : Original search list Ex.P.13(c) : Signature of P.W.5
Ex.P.13(d) : Rough sketch of inter connectivity of equipment Ex.P.13(e) : Signature of P.W.4 Ex.P.13(f) : list of equipment i.e. Annexure A Ex.P.13(g) : Signature of P.W.4 Ex.P.14(h) : Signature of P.W.15 Ex.P.14 : Inspection Report Ex.P.14(a) : Signature of P.W.4 Ex.P.14(b) : Signature of Vijaya Krishna Murthy Ex.P.15 : Clarification Report Ex.P.15(a) : Signature of P.W.4 Ex.P.15(b) : Along with clarification report another 8 sheets Documents Ex.P.16 : Xerox Copy of MOU dated 06.02.2004 Ex.P.17 : Certificate issued by VOIP to Telecentres Ex.P.17(a) : Signature of Kusumba Sridhar Ex.P.18 : Delivery challan & Sl.No. of Telecords 68 C.C.No.22201/2006 Ex.P.19 : Panchnama Ex.P.19(a) : Signature of P.W.7 Ex.P.19(b) : hash value of CDs Ex.P.19(c) : Signature of P.W.7 Ex.P.19(d) : Signature of P.W.8 Ex.P.19(e) : Signature of P.W.8 Ex.P.19(f) : Signature of P.W.12 Ex.P.19(g) : Signature of P.W.13 Ex.P.19(h) : Signature of P.W.16 Ex.P.20 : One entire file Swift Vebtel card Ex.P.21 : Entire file containing photo copy of Vebtel Certificates Ex.P.22 : Report dated 26.07.2005 Ex.P.22(a) : Signature of P.W.7 Ex.P.22(b) : Signature of P.W.8 Ex.P.23 : Covering letter dated 26.07.2005 Ex.P.23(a) : Signature of P.W.8 Ex.P.24 : 10 Telephone Bills Ex.P.25 : Seizure Memo Ex.P.25(a) : Signature of P.W.9 Ex.P.26 : Certified copy of A/c opening form Ex.P.27 : Statement of A/c Ex.P.28 : Visiting card Ex.P.29 : Receipt memo Ex.P.29(a) : Signature of P.W.11 Ex.P.30 : FIR Ex.P.30(a) : Signature of S.P. Ex.P.31 : Inspection report dt.18.04.205, opinion report dated 26.07.2005 of GEQD, carbon copies of bills of M/s Help Consultancy Network Ex.P.32 : Airtel documents and CDRs letter dt.16.05.2005 69 C.C.No.22201/2006 Ex.P.33 : Customer agreement form of Rajesh IV. List of documents exhibited for defence :-
- NIL -
V. List of material objects marked for the prosecution:
M.O.1 : Seized materials of VOIP Gateway
Model:A400
M.O.2 : one broadband router MRO TEK make
M.O.3 : Telephone adapter CISCO ATA
M.O.4 : Mercury Switch
M.O.5 : power cord, 3 power adapters
M.O.6 : connecting cables
VI. List of material objects marked for the defence:--
- NIL-
XVII Addl. A.C.M.M., Bangalore.70 C.C.No.22201/2006
27.08.2015.
ORDER ON SENTENCE The Ld. Counsel for the accused vehemently argued and submitted that accused is having wife and two small kids as well as he is residing at Bangalore. He is the sole earning member to maintain the family. If this Court imposed maximum sentence, it will put to greater hardship and injustice to the family members. Therefore, prays to take lenient view and to pass the sentence.
2. Per contra, the Ld. Counsel for the Public Prosecutor vehemently argued and submitted that once the prosecution is able to prove the guilt of the accused beyond all reasonable doubts, the court has to impose maximum sentence to the accused.
3. On going through the facts and circumstances of the case as well as submissions made by the counsels, I would like to mention the prosecution is able to prove the guilt of the accused beyond all reasonable doubts. At the same time, the accused has expressed his inability as well as he is having two small kids as well as family members are depending upon him. On this context, I would like to mention the offence which was committed by the accused is the economic offence and the act of the accused has made loss to the Central Government. The gravity of the offence as 71 C.C.No.22201/2006 well as conduct of the accused clearly noticed that he is not entitled to any leniency or mercy of the Court. For the offences u/Sec. 420 IPC the punishment prescribed is imprisonment for seven years and also fine. I have also perused the Sec. 3 and 4 of the P.O. Act. In my opinion, when the accused is found guilty for the offence punishable under Sections 20 and 20 A r/w Section 4 of Indian Telegraph Act, 1885, under Section 21, 25 (c) of Indian Telegraph Act, 1885, under Section 6 r/w Section 3 of Indian Wireless Telegraph Act, 1933, under Section 120 B r/w 420 of Indian Penal code, which are all the offences touching the economy of the State which has to be dealt as provided under Law. In my opinion in such a case, the benefit under P.O. Act cannot be extended.
4. In view of the above discussion as well as considering the arguments canvassed by the counsel, I proceed to pass the following :
ORDER
1) Accused is sentenced to pay fine of Rs.1,000/-
(Rs.one thousand only) for the offence punishable under Section 20 of Indian Telegraph Act, and in default, he shall undergo S.I. for period of 3 months.
2) Accused is sentenced to pay fine of Rs.1,000/- (Rs.one thousand only) for the offence punishable under Section 20 A of Indian Telegraph Act, and in default, he shall undergo S.I. for the period of 3 months.
72 C.C.No.22201/2006
3) Accused is sentenced to pay fine of Rs.50/-
(Fifty Rupees only) for the offence punishable under Section 21 of Indian Telegraph Act, and in default, he shall undergo S.I. for the period of 1 day.
4) Accused is sentenced to undergo one year of simple imprisonment for the offence punishable under Section 25 (c) of Indian Telegraph Act, and he shall pay a fine of Rs.1,000/- (Rs.one thousand only), in default, he shall undergo S.I. for the period of 3 months.
5) Accused is sentenced to pay fine of Rs.100/-
(Rs.One hundred only) for the offence punishable under Section 6 r/w Section 3 of Indian Wireless Telegraph Act, 1933, and in default, he shall undergo S.I. for the period of 2 days.
6) Accused is sentenced to undergo 6 months of simple imprisonment for the offence punishable under Section 120 B of Indian Penal Code, and he shall pay a fine of Rs.1,000/- (Rs.one thousand only), in default, he shall undergo S.I. for the period of 3 months.
7) Accused is sentenced to undergo one year of simple imprisonment for the offence punishable under Section 420 of Indian Penal Code, and he shall pay a fine of Rs.1,000/- (Rs.one thousand only), in default, he shall undergo S.I. for the period of 3 months.
8) All the substantive sentences imposed against the accused for the above said offences shall run concurrently. The accused shall pay a total fine of Rs.5,150/-(Rs.Five Thousand One Hundred and Fifty only] together or shall serve out the sentence as ordered above.
73 C.C.No.22201/2006
9) Supply a free copy of the conviction judgment and sentence to the accused forthwith.
[Dictated to the Stenographer , transcribed by her, transcript corrected, signed and then pronounced by me in the open Court, this the 27th day of August, 2015.] [SABAPPA] XVII Addl.Chief Metropolitan Magistrate, Bangalore 74 C.C.No.22201/2006 ORDERS ON APPLICATION UNDER SECTION 389 (3) OF Cr.P.C.
The accused counsel filed application under Section 389 (3) of Cr.P.C. and submits that, accused is convicted by this Court. He is having good case to prefer appeal before Hon'ble District and Sessions Court. Therefore, sentence may be suspended till appeal period is over.
2. Heard both the sides.
3. On going through the petition averments as well as records, it is noticed that, accused is on bail as well as he is attending Court on every date of hearing. Moreover, he is having right to prefer an appeal against the judgment passed by this Court. Accused is having two small kids as well as family members. He is the sole earning member to maintain the family. Hence, reasons are satisfied. Accordingly application is allowed. Hence, I proceed to pass the following -
ORDER The application filed by the accused counsel under Section 389 (3) of Cr.P.C., is hereby allowed.
Sentence passed by this Court is suspended for a period of 30 days.
Accused is hereby directed to execute personal bond of Rs.20,000/- (Rs.Twenty 75 C.C.No.22201/2006 thousand only) with one surety as well as he shall pay fine amount today itself.
Accused counsel filed surety affidavit along with RTC and other documents. Surety by name Sri D.K. Siddaraju S/o Kalegowda, R/o Dalimbe village, Sathanur hobli, Kanakapura Raluk, Ramanagara District is present and willing to stand as surety to the accused. Hence, his suretyship is accepted.
Call on XVII A.C.M.M., Bangalore.