Telangana High Court
S.Upendra Radha Krishna Murthy And ... vs The State Of A.P., Rep By Spl.Pp., on 6 September, 2024
THE HON'BLE SRI JUSTICE K.SURENDER
CRIMINAL REVISION CASE No.1803 of 2009
ORDER:
1. The revision petitioners/A1 and A2 were convicted under Section 120-B r/w 420 IPC vide judgment in C.C.No.158 of 2001 dated 08.01.2008 passed by the XIV Additional Chief Metropolitan Magistrate at Hyderabad. The said conviction was confirmed by the I Additional Metropolitan Sessions Judge, Hyderabad vide judgment in Criminal Appeal Nos.15/2008 dated26.10.2009.
2. The case of the prosecution is that the Department of Telecom received multiple complaints from subscribers regarding poor call quality and frequent interruptions, especially during international calls. Investigations revealed that these issues were linked to international calls being received from local numbers. These local numbers were traced to a firm run by A1 and A2.
3. On August 5, 2000, a joint surprise check was conducted at the premises of M/s Supra Online Data Services (Flat No. 603) by officials from the CBI, BSNL's vigilance department, and other telecom officials. The operation revealed illegal installation of 24 ISDN lines and related multiplexing equipment (MOs 1 to 10). The case was registered on August 8, 2000, based on a written 2 complaint (Ex.P22) filed by PW8, the Assistant General Manager of BSNL's technical wing. Following the investigation, the CBI filed a charge sheet against the accused.
4. It is the case of the prosecution that the accused/A1, A2, A4, and A5 conspired to operate an illegal telecommunication network through their firm, M/s Supra Online Data Services, causing a financial loss of ₹1,65,51,360 to the Government of India. A1 and A2 forged signatures to create a partnership deed (Ex.P40) for the firm, through which they rerouted international calls to local Hyderabad numbers using 12 ISDN lines. This operation involved the use of specialized equipment that converted and split international calls into multiple local circuits, allowing up to 24 calls to be switched simultaneously, thereby bypassing the legal international call processing via VSNL.
5. It is further the case of the prosecution that A4 was responsible for installing key telecom equipment in Hyderabad, facilitating the illegal routing of calls, while A5 employed compression techniques to transmit multiple calls simultaneously. These actions resulted in significant revenue losses for the government and licensed telecom operators, as the accused did not pay the required license fees or taxes. According 3 to prosecution, the illegal network, which include hubs both in India and abroad, was used to sell prepaid calling cards, leading to unaccounted call traffic. This posed substantial risks to national security, as the unregulated traffic could be exploited by criminals, making it difficult for law enforcement to monitor and track these calls.
6. The trial Court examined P.Ws.1 to 25 and marked Exs.P1 to P43 on behalf of the prosecution and M.Os.1 to 11 were brought on record. On behalf of the defence, D.W.1 was examined.
7. P.W.8/Assistant General Manager, BSNL filed initial complaint after receiving numerous reports of poor call quality. This complaint led to the involvement of the CBI and the subsequent raid on A1 and A2's firm. P.W.20/Deputy General Manager, BSNL, who participated in the raid, confirmed the presence of ISDN lines and multiplexing equipment at the firm. He corroborated P.W.8's evidence regarding poor call quality and the appearance of local numbers on caller IDs during international calls.
8. P.W.21/Senior Manager, VSNL/Deputy General Manager, BSNL, took part in the surprise check, verifying that VSNL was 4 the only authorized agency for international calls. He confirmed the discovery of illegal equipment at A1 and A2's premises.
9. P.W.23/Assistant Director, BSNL acted as a mediator during the raid prepared a layout diagram (Ex.P23) and proceedings Ex.P4. He confirmed the seizure of equipment (MOs 1 to 11). P.W.3/LDC in Registrar of Companies, acted as independent witness during the search and seizure operations. PW18/Inspector of Police, CBI, part of the team conducting the raid. P.W.24/Sub-Inspector of Police, CBI, investigating officer who took over investigation after the case was registered.
10. These witnesses were present during the joint surprise check conducted on August 5, 2000, and collectively supported the prosecution's case. They provided consistent testimony regarding the service of the seizure memo (ExP24), the conduct of the search, and the seizure of equipment (MOs 1 to 11) under ExP4, supported by diagrams (ExP3 and ExP23) and photographs (ExP1 and ExP2). The prosecution relied on this evidence, including the panchanama (ExP4), diagrams (ExP3 and ExP23), and photographs (ExP1 and ExP2), to establish the surprise check and seizure of equipment at the scene of the offense. All 5 witnesses consistently testified in support of the prosecution's case without material contradictions.
11. The main contention of accused was that the prosecution failed to establish a connection between the accused and the firm involved in the alleged illegal activities. However, both Courts below found that the prosecution had clearly demonstrated A1 and A2's roles in the firm. This included: a) Securing the premises on lease; b) Opening and operating bank accounts; c) Purchasing equipment; d) Obtaining 14 ISDN lines from Tata Teleservices using funds from the firm's account.
12. Courts further found that the defense did not dispute the legality or licensing of the business. Furthermore, during the year 2000, only VSNL was authorized by the Government of India to handle international calls, whether incoming or outgoing. The Courts below concluded that A1 and A2 were involved in operating an illegal telecom network, resulting in wrongful loss to the Government of India (VSNL and BSNL).
13. The contention of counsel for A1 and A2 is that the three- day delay between the surprise check on August 5, 2000, and the crime registration on August 8, 2000, adversely affected the 6 prosecution's case. However, Court found that the delay did not cause prejudice to the accused. The delay was justified as: i) The complaint was filed by PW8 after the joint surprise check conducted by CBI, BSNL, VSNL, and independent witnesses; ii) The check revealed the illegal telecom network, leading to the subsequent investigation and charge sheet. The joint surprise check was valid and necessary for detecting the illegal network. The crime was registered based on the findings from this check, and the delay was not fatal to the prosecution's case.
14. The accused case is that there was no direct evidence of an agreement between A1 and A2 to commit the crime of cheating. They claimed that the prosecution's reliance on circumstantial evidence was insufficient, as the circumstances presented did not conclusively incriminate the accused or eliminate the possibility of their innocence. They emphasized that there was no material evidence to show any meeting or illegal agreement between A1 and A2 to operate the unauthorized telephone business. However, the Courts rejected this contention, emphasizing that conspiracy is often hatched in secrecy, making direct evidence difficult to obtain. The judge ruled that the prosecution had successfully proven the conspiracy through inferences drawn 7 from the accused's actions and the illegal operation they conducted, thereby establishing the charges of conspiracy and cheating against A1 and A2.
15. Ex.P24 documented the seizure of 12 items from A2 on 8.8.2000 by TSC Bose, DSP, CBI, in the presence of PW3 and PW8. Ex.P4 was the only record of proceedings from the surprise check conducted on 5.8.2000 by PW18, Dpt SIP, CBI, with PWs 3 and 8 present. PW3 and PW8 did not specifically mention the seizure date in their chief examinations but indicated that MOs 1 to 10 were found during the surprise check on 5.8.2000. Although PW8 provided evidence that the CBI dismantled the seized items, he did not specify the exact date of seizure.
16. MOs 1 to 10 were seized under ExP24 on 8.8.2000, after the case was registered and the FIR was issued. Despite the irregularity in not recording the information as a GD entry before the joint surprise check, it did not constitute an illegality. The admissibility of the seized evidence is based on Supreme Court decisions and the appellants' contention regarding procedural violations is unfounded.
17. In Amit Kapoor v. Ramesh Chander(AIR OnLine 2012 SC
668), the Hon'ble Supreme Court held that Section 397 of the 8 Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satisfying itself as to the legality and regularity of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error and it may not be appropriate for the Court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on no evidence, material evidence is ignored or judicial discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits.
18. In Krishnan & another v. Krishnaveni & another (AIR 1997 Supreme Court 987 (1997), the Hon'ble Supreme Court held that exercises of the revisional power by the high court under Section 397 read with Section 401 is to call for the records of any inferior Criminal Court and to examine the correctness, 9 legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal courts to the High Court and Courts of judicial Magistrate are inferior criminal courts to the Sessions judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 401 are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo motu power under Section 401 to exercise the revisional power on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court, and to dispose of the revision in the manner indicated under Section 401 of the Code.
19. The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse the power vested in them under the code or to prevent abuse of the 10 process of the inferior criminal courts or to prevent miscarriage of justice.
20. Learned counsel appearing for the revision petitioners/accused once again raised very same grounds which were addressed by the trial Court regarding the surprise check being on 05.08.2000 without there being registration of crime. Further, learned counsel argued regarding prosecution not being able to prove the case that A1and A2 were in fact running the premises. As already discussed above, the securing of the premises on lease, opening and operating bank accounts, purchasing equipment and obtaining 14 ISDN lines from Tata Teleservices using funds from the firm's account clearly established by the prosecution.
21. Unless there are compelling reasons such as the Courts below deciding the case not on the basis of any evidence before the Court or not considering any admissible evidence, only under such circumstances, this Court can go into reassessment of facts.
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22. As already discussed, both the Courts below have given reasonable and adequate reasons for negativing the grounds raised by the accused. The very same grounds are raised before this Court. I do not find any infirmity with the findings of the Courts below.
23. However, keeping in view that the age of the accused, the sentence of imprisonment is reduced to one year under Section 120B r/w Section 420 IPC.
24. The trial Court is directed to cause the appearance of the accused/A1 and A2 and send them to prison to serve out the remaining period of sentence. The remand period, if any, shall be given set off under Section 428 Cr.P.C.
25. Accordingly, Criminal Revision Case is partly allowed.
__________________ K.SURENDER, J Date : 06.09.2024 kvs