Delhi District Court
Cbi vs . Jyoti & Others on 28 March, 2013
1
IN THE COURT OF MS. ANU MALHOTRA, SPECIAL JUDGE CBI,
PC ACT-06, TIS HAZARI COURT, DELHI
RC No. 20(A) 96/CBI/ACB/ND
CBI VS. JYOTI & OTHERS
CC No. 52/12
JUDGMENT
This judgment shall dispose off the allegations levelled in the charge sheet filed pursuant to registration of FIR No. 20(A) 96/CBI/ACB/ND dated 15.03.1996 Ex. PW 7/B against the accused persons : -
Jyoti d/o Shri Shiv Kumar Kohli accused No. 1.
Manohar Singh s/o Shri Thakur Das accused No. 2.
Om Prakash s/o Shri Nanwa Ram accused No. 3, (The accused No.4 Shri Deepak Sharaf S/o Shri Shiv Kumar Kohli has vide order dated 27.05.2005 been discharged in relation to the allegations levelled against him in the chargesheet), to the effect that the accused Jyoti, Manohar Singh and Om Prakash during the year 1995 entered into a conspiracy pursuant to which the accused Ms. Jyoti applied for two telephone connections in the fictitious names of Surender Kumar and Sunita Sharma on the basis of forged documents which were used as genuine for the purpose of cheating and the accused Manohar Singh the then JTO, Karol Bagh Exchange issued jumper letters for installation of the telephone Nos. 5767106 and 5766898 in fake names of Surender Kumar and Sunita Sharma respectively at house No. 5621/77, Regar Pura, Karol Bagh, New Delhi with STD facility on telephone No. 5767106 and ISD facility on telephone No. 5766898 without verifying the genuineness of subscribers of telephone No. 5767106 and 5766898 and that both these telephones were misused by corrupt and illegal means by abuse of their official positions by the accused Manohar Singh and Om Prakash, whereby a pecuniary loss of Rs. 28,05,213/- was caused to the MTNL and wrongful gain was caused to the three accused persons, and it was thus alleged that the three accused persons had committed offences punishable under Sections 120 B r/w 420, 468 and 471 of the IPC 1860 under Section 13(2) r/w Section 13(1)(d) of 2 the Prevention of Corruption Act 1988 and Section 25 of the Indian Telegraph Act 1885.
The accused No.1 Ms. Jyoti was also charged with the substantive commission of offences punishable under Sections 420, 468 and 471 of the IPC 1860 in relation to the allegations levelled against her to the effect that during the year 1995, she had applied for two telephones on the basis of forged documents of which the documents in the name of Sunita Sharma were alleged to have been forged by the accused No. 1 Jyoti for installation of telephone No. 5767106 in the name of Surender Kumar and telephone No. 5766898 in the name of Sunita Sharma with intent to cheat the MTNL and that she got the telephone No. 5767106 with STD facility and telephone No. 5767898 with ISD facility installed at her residence at 2621/77 Regar Pura, Karol Bagh, New Delhi and that the forged documents were used as genuine and the ISD and STD facilities installed on the two telephone numbers were misused causing pecuniary loss to the tune of Rs. 28,05,213/- to the MTNL.
Against the accused no. 2 Manohar Singh, the substantive allegations with which the said accused was charged were that he had allegedly abused his official position and issued jumper letters of telephone Nos. 5767106 and 5766898 without verifying the genuineness of the subscribers and both the telephones were installed at 5621/77, Regar Pura, Karol Bagh, New Delhi with STD and ISD facilities through the said telephone Nos. without ascertaining the genuineness of the subscribers, for delivering the messages from the telephones which had STD / ISD facilities respectively and that the said telephones were thus misused and pecuniary advantage to the tune of Rs. 2,85,05,213/- was obtained to the co-accused person and to the co-accused No. 2 Manohar Singh, who thereby allegedly committed offences punishable under Sections 13(2) r/w 13(1)(d) of the Prevention of Corruption Act and Section 25 of the Indian Telegraph Act 1885.
The substantive charge of allegations levelled against the accused Om Prakash Telephone Operator, Karol Bagh Exchange of the MTNL was that during the year 1995-96 to the effect that he had forged documents in the name of Surender Kumar and used them fraudulently for obtaining a telephone connection on the basis of forged documents qua telephone No. 5767106 with STD r/o at 5621/77, Regar Pura, Karol 3 Bagh, New Delhi and that the accused No. 3 Om Prakash intentionally got through the telephone lines of telephone No. 5767106 and 5766898 at 5621/77, Regar Pura, Karol Bagh ,New Delhi so that messages from those telephones which had STD/ISD facilities could be delivered, and that whilst the said accused was working as a Telephone Operator at the Karol Bagh Exchange, he misused his official position and got installed telephone No. 5767106 with STD facility at 5621/77 Regar Pura, Karol Bagh New Delhi and obtained pecuniary advantage to the tune of Rs. 28,05,213/- to the co-accused and to himself and thereby committed offences punishable under Sections 468 and 471 of the IPC 1860 and Section 25 of the Indian Telegraph Act 1885, and Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act' 1988.
The prosecution cited 35 witnesses, of whom 28 were put forth in the witness box. Four defence witnesses were produced by the accused of whom DW 1 Shri Nihal Singh Saini, Divisional Engineer (MTNL), Nangloi, Delhi and DW 4 Shri Ram Kishore, Sub Additional Engineer (Cabin) at the Shakarpur Telephone Exchange of the MTNL were produced by accused No. 2, DW 2 Shri R.P. Saxena Incharge Fault Repair Service of the MTNL Karol Bagh, New Delhi was produced by the accused No. 3 Mr. Om Prakash and DW 3 Ms. Christina was produced by the accused No. 1 Ms. Jyoti.
Through their statements under Section 313 of the Cr.P.C. 1973, the three accused have denied the alleged incriminating evidence led against them and have claimed innocence whilst submitting that they have been falsely implicated in the case.
Arguments were addressed on behalf of the CBI, by the Ld. PP for the CBI Mr. V.K. Ojha. Arguments on behalf of the three accused were addressed by Ld. Counsel for the accused Mr. Aman Sareen, Mr. Umesh Sinha and Mr. Sanjay Sharma on behalf of the accused Nos. 1, 2 and 3 respectively.
A written list of alleged incriminating evidence against the accused persons was submitted by the Ld. PP for the CBI.
Written synopsis of arguments has been submitted on behalf of the accused No. 1, 2 and 3.
4CONTENTIONS OF THE PROSECUTION The prosecution version set forth through the charge sheet is that on receipt of information Dy. SP H.C. Bisht, made a written complaint dated 15.3.96 and thus the present case was registered to the effect that telephone numbers 5766898 and 5767106 illegally installed at house No. 5621/77, Ragar Pura, Karol Bagh, New Delhi in fake names were being misused for STD/ISD purposes and that a joint surprise check on 15.3.96 was conducted at the above said premises by the CBI officers and the Vigilance Officers of the MTNL along with independent witnesses, and during the surprise check one Panasonic black coloured telephone apparatus with conferencing facilities on which the lines of telephone No. 5767106 and 5766898 were found extended was found in the premises, and the said portion of the house was found occupied by Shri Shiv Kumar Kohli and his family members but the telephones were not registered in the names of any of the family members of the occupants of the premises, and the availability of STD/ISD facility on these two telephones was confirmed by the MTNL staff on the spot through technical checking.
As per the prosecution version, the accused No. 1 Jyoti, in connivance with accused No. 3 Om Parkash, Telephone Operator, Karol Bagh Exchange, Delhi applied for two telephone connections in fictitious names of Surinder Kumar and Sunita Sharma on the basis of forged documents and in connivance with the accused No. 2 Manohar Singh, the then JTO, Karol Bagh Exchange, cheated the MTNL by evading the payment as the telephone number 5767106 in the name of Surinder Kumar was installed at 5621/77, Ragar Pura on 7.11.95 with dynamic STD facility and the other telephone No. 5766898 in the name of Sunita Sharma was with ISD facility. Accused No. 1 is stated to have availed this ISD facility on forged applications and both these phones are alleged to have been misused by connecting them on a two lines conference system and by making STD/ISD facility available to various persons and both these phones are stated to have been found in a working condition with the conferencing instrument at the time of surprise check. It is further alleged by the CBI that the accused No. 1 and her family had been residing in this house for more than 30 years and no other person with the name Sunita Sharma or Surinder Kumar had ever resided in that house, and that the application 5 form and other documents for installing these two telephones were forged by accused No. 3 Om Parkash in connivance with the accused No. 1 Ms. Jyoti and accused No. 2 Manohar Singh and accused No. 3 Om Parkash and that without verifying the genuineness of the subscriber, the accused No. 2 handed over the jumper letter of phone No. 5767106 to Om Parkash for smooth and easy functioning of the phone. It is contended by the CBI that the genuineness of the subscriber of the other telephone No. 5766898 was also not verified by the accused No. 2 Manohar Singh and the jumper letter was issued on the forged application in the name of Sunita Sharma which was attested by Sh. R.K. Dotania when Ms. Jyoti posed herself as Sunita Sharma. As per the prosecution, the conferencing facility was availed by using the two line conferencing instrument on the above two telephones as they were connected with each other in speech mode during the same period, when as per the print outs, both the telephones were busy, though the use of conferencing instrument is against the rules.
On behalf of the CBI it was submitted by the Ld. PP that qua the allegation levelled against the accused no. 1 Jyoti that she in connivance with the accused No. 2 Manohar Singh and accused No. 3 Om Prakash had got installed two telephone Nos. 5766898 with ISD facility in the name of Sunita and 5767106 with STD facility in the name of Surender who were both not residing at the address 5621/77, Regar Pura, Karol Bagh and that she had misused these two telephones and made STD and ISD calls and approximately bills to the tune of Rs. 28 lacs as per bills Ex. PW27/1 - 1 to Ex. PW 27/1-1-6 had not been paid. It was further submitted on behalf of the CBI, that the testimonies of PW 2 Shri M.L. Kochar, Assistant Vigilance Officer, MTNL the source informer, PW 3 Shri Raj Kumar Aggarwal, AG-II Headquarters, FCI New Delhi, PW 4 Shri A.P.S. Sachdeva the then Assistant Vigilance Officers in the Vigilance Section of the MTNL, PW 5 Shri Bishan Singh then SDE (Record) Karol Bagh Telephone Exchange of the MTNL, PW 6 Rakesh Kumar then Telephone Operator Karol Bagh MTNL. PW 6 HC Bisht then Deputy S.P. CBI Anti Corruption Branch, New Delhi, brought forth the allegations in toto.
PW 8 Smt. Krishna Aggarwal, daughter in law of the stated owner of the premises 5621/76 and 5621/77 Regar Pura, New Delhi, was produced by the prosecution 6 to contend that Shri Shiv Kumar Kohli was residing as a tenant in the said premises with his family since 1963-1964, and that no other tenant remained in the upper portion of the house no. 5621/77 with Shri Shiv Kumar Kohli, nor separately.
It was further submitted strenuously on behalf of the CBI that the testimony of PW 28 Shri Pancham Lal Sub Inspector MTNL brought forth that the accused No. 1 Jyoti was residing at 5621/77, Regar Pura, Karol Bagh, and that this house was raided on 15.03.1996 in the presence of the independent witnesses PW 3 Shri Raj Kumar Aggarwal and PW 25 Shri Surender Kumar and also Divisional Engineers of the MTNL which established that the telephones in the name of Surender and Sunita were opened by the accused No. 1 Jyoti for making STD and ISD calls with intention to cheat the MTNL. It has also been alleged by the prosecution that whereas in the official record of the MTNL, the same were DNP i.e. disconnected for non payment, but actually the same were working with the connivance of accused No. 2 and accused No. 3. It has also been submitted on behalf of the CBI that the technical report of the MDF Section (Main Distribution Frame) Section prepared by Mr. S.K. Goel. PW 10 then JTO Vigilance MTNL i.e. D-4 i.e. Ex. PW 3/A confirmed the same and it was also submitted on behalf of the prosecution that the commercial files D-17 i.e. Ex. PW 4/B in the name of Sunita qua telephone No. 5766898 and the commercial file in the name of Surender i.e. D-19 Ex. PW 4/C corroborated the prosecution. It was further submitted that as per Ex. PW 24/1 i.e. circular No. 6-1/94 - PHB dated 29.04.1994 forming part of Swamy's Treatise of Telephone Rules, a two line device i.e. a conferencing instrument such as Ex. P-1 seized in the instant case is not allowed to be used on service telephone communications and STD, PCO's for commercial use, but in the instant case the telephones in question were so connected on the instructions of accused No. 2.
Interalia, it was submitted on behalf of the prosecution that the testimony of PW 25 i.e. Shri Surender Kumar the independent witness then working as Assistant Grade-I with the Food Corporation of India brought forth that photographs at the site of the raid had been taken to support the prosecution version that the conferencing instrument had been seized from the spot and also to indicate the communication of the telephone lines as alleged. Interalia it was submitted on behalf of the CBI that the 7 testimony of PW 17 Mr. Rajender Dotania Chief Manager, DSIDC, New Delhi who testified to the effect that he knew the accused No. 1 Jyoti known as Sweety since childhood as being r/o 5621 or 5622 No. 77 Regar Pura, Karol Bagh with his attestation at Ex. PW 17/A under his signatures and office stamp whereby he had attested the signatures of Jyoti @ Sweety on Ex. PW 4/DZ, which is an application to the Divisional Engineer MTNL, Karol Bagh, New Delhi whereby an applicant Sunita has sought restoration of ISTD on her telephone No. 5766898 on which his attestation was there at Ex. PW 17/A with his writing "sign in my presence by the applicant, -sd-28/8/95, brought forth that the accused no. 1 Jyoti impersonated as Sunita, the applicant. It has been submitted by the prosecution against the accused No. 2 Manohar Singh that he in conspiracy with accused Nos. 1 and accused No. 3 got installed the two telephone Nos. i.e. 5766898 ISD in the name of Sunita and Telephone No. 5767106 STD in the name of Surender at the residence of Jyoti at 5621/77 Regar Pura, Karol Bagh which telephones were misused as per call details to the tune of Rs. 28 lacs and it has been submitted on behalf of the prosecution that the testimonies of PW 21 Shri Sant Ram the Regular Mazdoor, brings forth that he installed the phone at the house of accused No. 1 on the directions of accused No. 2 and that of PW 28 SI Pancham Lal of the MTNL Exchange at Karol Bagh who testified to the effect that the accused No. 2 Manohar Singh was his immediate boss who was working as a Junior Telecom Officer and that PW 28 Shri Pancham Lal had installed the telephone No. in relation to OB No. 115735440 at the residence of Miss. Sunita Sharma at 5621 Gali NO. 77, Regar Pura, Karol Bagh where he had gone with his assistants Shri Lal Singh, Shri Brij Lal and Shri Sant Ram i.e. Shri Sant Ram PW 21 and this number had been installed by him PW 28 Shri Pancham Lal at this address as given to him by Shri Manohar Singh accused No. 2, and at the said premises they had found Jyoti and her mother but not Sunita Sharma and when they made inquiries about Sunita Sharma, Jyoti i.e. accused No. 1 asked them not to make inquiries about Sunita Sharma and to install the telephone as had been directed by the accused No. 2 Shri Manohar Singh, the JTO. It is submitted on behalf of the prosecution that the testimony of PW 28 SI Pancham Lal also brings forth that OB No. 35571006291 in the name of Shri Surender Kumar bearing the address 5621/77 Regar Pura, Karol Bagh had 8 been installed at the address 5621/77 Regar Pura, Karol Bagh by him SI Pancham Lal on the instructions of accused No. 2 Shri Manohar Singh JTO in the name of Surender Kumar where he had gone with the assistants i.e. Brij Lal and Sant Ram PW21 and Shri Surender Kumar was not found there and only Jyoti, accused No. 1 and her mother were there and on PW 28 Shri Pancham Lal making inquiries about Shri Surender Kumar, the accused No. 1 Jyoti asked him to install the lines and not to make any inquiries about Surender Kumar and thus, as he SI Pancham Lal was working under the instructions of the Junior Telecom Officer Manohar Singh, he installed the telephone line and that this telephone line had been connected by him i.e. PW 28 with the telephone instrument which he carried alongwith him, whereas the line in the name of Ms. Sunita Sharma had been installed by him on the telephone instrument provided by accused No. 1, as he PW 28 Shri Pancham Lal did not have the telephone instrument with him.
It was submitted further on behalf of the prosecution that the testimony of PW 14 Shri Prakash Chander Khanna who was posted as the Divisional Engineer in the Karol Bagh Telephone Exchange MTNL in the year 1996 also brought forth that the telephone Nos. 5766898 and 576106 despite disconnection which were found to be working and in use as per the records in the file D-18 i.e. Ex. PW 14/A which contained the print outs Ex. P14/A 1, Ex. P14/A2, Ex. P14/A3, Ex. P14/A4 bearing his signatures and further testified to the effect that in the instant case after disconnection of these telephone Nos. no instruction for the reconnection thereof had been received by the switch room from the FRS and that the restoration of the telephones could have been possible only through the computer and the necessary command given in that record would have been stored therein and also the password of the person who did the same.
Qua the accused No. 3 Om Prakash it was submitted on behalf of the CBI that the accused No. 3 in conspiracy with the accused No. 1 and 2 i.e. Ms. Jyoti and Manohar Singh respectively has filled up the application form for connection and has forged the signatures of Surender and it has been submitted on behalf of the CBI that the testimony of PW 11 Shri N.K. Aggarwal, Senior Scientific Officer Grade 1 CFSL New Delhi and his report Ex. PW 11/A brought forth that the questioned signatures/writings Mark Q-17 to Q-28 i.e. Ex. PW 4/D collectively tallied with the specimen signatures and 9 handwriting S1 to S38 i.e. Ex. PW 11/S1 to S38 which specimen signatures and hand writing were stated to be of the accused No. 3 Mr. Om Prakash as sent with the forwarding letter Ex. PW 27/D dated 25.07.1987 by the SP CBI to the Director CFSL (D-
12) 25.07.1987 with its enclosures i.e. D-12.
PROSECUTION EVIDENCE PW 1 produced by the CBI, was Mr. A.K. Kalia Joint Director General, Ministry of Communication New Delhi who testified to having accorded sanction for prosecution, vide sanction order Ex. PW 1/A bearing his seal and signatures of the two accused Om Prakash and Manohar Singh, the then Telephone Operator and JTO respectively on 09.08.1999, when he PW 1 was working as Deputy General Manager (Administration) Northern Telephone Region, Kidwai Nagar, New Delhi. Though this witness has been cross examined on behalf of the accused Nos. 2 and 3, the testimony of PW 1 Shri A.K. Kalia is categorical to the effect that the sanction order was prepared on his dictation and only after he satisfied himself and after application of mind. The testimony of this witness establishes that the sanction for prosecution of the two accused i.e. accused No. 2 and 3 Mr. Om Prakash and Manohar Singh under the Prevention of Corruption Act 1988, was validly accorded..
PW2 examined was Mr. M.L. Kochar, Divisional Engineer (Administration) Special Services, MTNL, New Delhi who testified to having been posted as the Assistant Vigilance Officer, MTNL, New Delhi on 15.03.1996 and to the effect that on that day he along with Mr. A.P.S. Sachdeva i.e. (examined as PW 4) and Mr. R.S. Yadav from the Vigilance Section, MTNL visited the CBI office and met the SP Mr. Kaumudi and informed him about the misuse of the two telephones in Regar Pura, Karol Bagh which required to be investigated by the CBI and that the SP then called Mr. H.C. Bisht, the Deputy SP and some Inspector and appraised them of the facts. He further stated that the two independent witnesses from the FCI i.e. Mr. Surender Kumar and Mr. R.K. Sharma were requisitioned and after discussion in the presence of both the witnesses and CBI officers, they left for the premises at Regar Pura and a team was deputed in the MDF, i.e. the main distribution frame Karol Bagh and that the address of the premises were ascertained from the telephone numbers being misused and it was also 10 ascertained that the owner of the premises was Shri Shiv Kumar. The witness further stated that at the outset it was first ascertained from their distribution point as to where the wires were going and thereafter they went to the premises where the wires were going and found that on the second floor in one bed room, both the telephone lines were extended on a Panasonic two lines instrument and in one of the telephone communications, the STD facility was available and on another telephone connection an ISD facility was available, and to confirm these facilities, telephone calls were made and that the persons present in the premises were interrogated and the persons in whose names the connections were installed i.e. Ms. Sunita and Surender were not found residing there. The witness further stated that there was one more telephone line found there but it was not connected with any instrument and on technical checking it was found that the telephone line was in a working condition. He further testified to Ex. PW 2/A being the joint surprise check memo prepared of the proceedings conducted in those premises which he testified bore his signatures on each page and contained a correct record of the proceedings conducted there, including the numbers of telephones mentioned in the memo found installed there and being misused and that the telephone bills against both the telephones estimated as per record were of about Rs. 28 lakhs. Interalia, this witness stated that this misuse of these telephones was in connivance with the MTNL staff.
PW 4 Shri A.P.S. Sachdeva Retired Deputy Engineer (Personal) MTNL, Delhi testified in his examination in chief to the effect that on 15.03.1996 he was posted as the Assistant Vigilance Officer in the Vigilance Section of the Krishi Lal Bhawan, MTNL New Delhi and that he, Mr. Kochar and Mr. Yadav who worked with him in the Vigilance Section went to the CBI office and as directed by his superior officer informed the SP CBI about the heavy calls qua the two telephone Nos. and the address from where the telephones were installed as per record. He further testified to the effect that though he did not recall the number of the telephone connections, one of them was an STD and one of them was a non STD. He stated that the SP called one DSP Mr. Bisht and two persons from the FCI, one of the whom was Mr. Aggarwal and three teams were constituted, one from the MDF, one from the Switch room and one from the premises 11 where the telephones were installed. He stated that he was in the team which visited the premises and stated that when they reached the premises the drop wire of the telephone connections were traced to be dropping at the second floor in a room, that they entered that room and a man was present in that room and after sometime a lady also came. He further stated that the team checked the telephones and made the STD calls which matured. This witness further stated that both the drop wires were communicated with a Panasonic two lines conference instrument and on interrogation by the CBI, it was revealed that the persons in whose names those telephones were installed were not residing in those premises and that the STD and ISD calls were made by the FCI officers to confirm the availability of the facilities. PW 2 further testified to a joint surprise check memo having been prepared in respect of the proceedings conducted at that spot and stated that the same bore his signatures at point B on each page. He further testified to the effect that whatever articles were seized vide this memo were also reflected in the memo and the numbers of the telephone installed at the premises were also mentioned in the memo. He further stated that there was another drop wire of a telephone connection found in a working condition but the number of that connection was not known. On being cross examined by the Senior PP for the CBI, the witness admitted that Mr. Surender Kumar and Mr. R.K. Aggarwal were the witnesses requisitioned and that the both the telephones were installed at house No. 5621/77, Regar Pura, Karol Bagh and that they were both private and non commercial but were being used to make STD/ISD calls which could not be done without the connivance of the officials of the MTNL and the subscriber. This witness further admitted during cross examination conducted on behalf of the CBI that only two teams were constituted in which Surender Kumar and R.K. Aggarwal participated as witnesses and that Surender Kumar was in his team which visited for the surprise check at the premises at Regar Pura. He also admitted that the said premises where both the telephones were installed were occupied by Mr. Shiv Kumar Kohli and testified to the effect that some documents alongwith passports of the family members residing at the premises were also recovered and that as per the record, the telephones were installed in the names of Surender Kumar and Sunita Sharma at the said premises, but both of them were not residing at the said premises. He further stated 12 that thereafter the Deputy SP H.Cs. Bisht sent Head Constable Balwant Singh with the complaint for the registration of the FIR and both the phones were put under malicious call observation and that he had handed over the record i.e. Ex. PW 4/B and Ex. PW 4/C in the name of Surender Kumar and Sunita Sharma respectively of both the telephones installed to the CBI and testified to Ex. PW 4/D being the record in relation to the application moved by Surender Kumar. He further testified that documents as per details mentioned in the memo Ex. PW 4/E had also been seized by the CBI.
PW 3 examined by the CBI was Mr. Raj Kumar Aggarwal, then posted as AG-II, HQ, FCI, New Delhi who testified to the effect that on the directions of the Deputy Manager (Vigilance) Shri J.L. Butta, he reported along with Mr. Surender Kumar, ASI, his colleague to the CBI office where there were some MTNL and CBI officers present. He further stated that they were briefed that at a residence in the Karol Bagh side, there were two telephones being misused as commercial, whereas the telephones are not commercial and it was also informed that bills of lakhs of rupees were pending against those telephone connections and two teams were constituted and he was a member of one team and Surender Kumar was a member of another team. He further stated that on reaching the spot alongwith the CBI and MTNL officials at the Karol Bagh Exchange, he visited the Karol Bagh Exchange at Pusa Road where some pairs were checked and a report regarding checking done at the exchange was prepared in his presence, the contents of which were explained to him and that he signed the report Ex. PW 3/A and thereafter they visited the premises at Karol Bagh where the other team was carrying out the proceedings and then came back to the CBI office.
PW 7 examined by the CBI was Mr. H.C. Bisht, Retired Superintendent of Police, CBI and then Deputy Superintendent CBI ,ACB New Delhi on 15.03.1996, who testified to the effect that on the said date, he had received a credible information regarding leakage of revenue of MTNL by way of adoption of malpractices, on two telephone Nos. 5767106 and 5766898 installed at 5621/77 Regar Pura, Karol Bagh New Delhi and that based on this information, he conducted a joint surprise check at the said premises in association with the Vigilance Staff of the MTNL comprising of Shri Sachdeva AVO and Shri Kochar AVO and Shri R.S. Yadav JTO apart from two 13 independent witnesses Mr. Surender Kumar and Mr. R.K. Aggarwal. He further testified to the effect that the CBI staff comprising of Inspector Bhatti and Mr. Kapoor and SI Shubha Dutta and two Constables i.e. Constable Balwan Singh and S. Singh were also associated. He further testified to the effect that before proceeding for the conducting of the joint check in the premises, a technical check was conducted involving the telephone pole by verifying whether the drop wires and their alignment viz -a- viz the telephone exchange were related to entry of telephone wires in the said premises and after being assured that the telephone wires were entering in the second floor of the said premises, the surprise check was started. He further testified to the effect that on knocking at the door of the said premises, it was revealed that it was a non commercial place occupied by Shri Shiv Kumar Kohli who had a jewellery shop in the name of M/s. Bharat Jewellery, Paharganj, who was called there and ingress to the said house was sought from Mr. Kohli who allowed the same, and on entering the bed room on the second floor of the premises, it was noted that both the telephones with the said telephone numbers were connected to a Panasonic telephone instrument giving telephone facility to the customers which was in violation of the MTNL rules. The witness further testifed to the effect that both these telephones were found functional and one telephone No. 5767106 with STD facility was installed in the name of Surender Kumar, a non existent person in the said premises and that the other telephone with ISD facility was also installed there in the name of Sunita Sharma who was also not existent qua the said premises. He further testified to the effect that with the assistance of the Vigilance staff of the MTNL, both these telephones were put on malicious call observation and several ISD and STD calls were made from these two telephone Nos. and print outs were asked to be taken from the computer and whilst making surprise check on the second floor of the premises, they found the drop wire relating to one more telephone whose wires were extended to the first floor bed room where it was connected to the telephone instrument. He further testified to the effect that he directed the Vigilance staff present there to verify whether the STD/ISD facility was permitted on this telephone and to find out if there was an element of leakage of trunk revenue with regard to the third telephone connection and also the ownership particulars of the same. He further stated that Mr. Shiv Kumar Kohli failed to give any 14 satisfactory reply qua the ownership of these two telephone Nos. installed in the name of Surender Kumar and Sunita Sharma and that during the surprise check it was learnt that against these two telephones there was a total outstanding liability of about Rs. 25 lacs which had not been paid to the MTNL and that it was a case of cheating. PW 7 further testified to the effect that he prepared a complaint Ex. PW 7/A bearing his signatures at point A addressed to the SP CBI New Delhi requesting for the registration of the FIR in the matter and the same was sent to the SP CBI through Constable Balwant and that the FIR was testified by PW 7 to be bearing the signatures of Shri V.S. Kamudi, the then SP ACB CBI New Delhi and the witness further testified to the effect that he had received a copy of the FIR brought by Constable Balwan and Deputy SP Mr. S.K. Peshin who was appointed as the Investigating Officer of the case.
Interalia it was testified by this witness that during the course of the surprise checking / search, various documents and two live cartridges detailed in Ex. PW 2/A were recovered and seized and that a perusal of the documents recovered, disclosed that several overseas telephone Nos were mentioned in some of the documents whilst in some of the documents various amounts from various persons had been taken in view of the telephone calls. He further testified to the effect that a photographer was also called and he had taken photographs of the telephone facilities installed in the said house and that the photographer was asked to supply the negatives and positives to the CBI, of the photographs taken and the witness further stated that both the telephone numbers found on the second floor were installed in one instrument of the make Panasonic Ex. P-1 with the conferences facility which was seized vide Ex. PW 2/A. The witness testified to the effect that the tracing of the jumpers at the Karol Bagh Main Distribution Frame (MDF) was also got done from the other MTNL staff and the joint surprise check memo Ex. PW 2/A bore his signatures and that Shri Shiv Kumar Kohli was brought to the CBI office for interrogation where he was apprehended and during the course of the surprise checking Smt. Bimla, wife of Shri Shiv Kumar Kohli and daughter of Shri Shiv Kumar Kohli were found present in the premises and there was no other person neither available nor said to be residing at the said premises.
15He further testified to Ex. PW 7/D and Ex.PW7/E as being the negatives of the photographs taken at the spot seized vide Ex. PW 7/C, and testified to Mark A1 to Mark A6 being the photographs of the spot. Interalia PW 7 Shri H.C. Bisht testified to Ex. PW 3/A being the MDF report of the Karol Bagh Exchange of the MTNL which bore the signatures of Mr. S.K. Bhatti at point A, which he state he identified as Inspector S.K. Bhatti had worked under him.
PW 9 examined by the CBI was Shri Naresh Kumar Lall CSDE (Phones) MTNL New Delhi who testified to the effect that on 15.03.1996, he was working as JTO MDF Karol Bagh, MTNL, New Delhi and on that date he conducted the test check pertaining to two telephone Nos. at the MDF Karol Bagh and conducted the test check alongwith Shri S.K. Sharma JTO (MDF) Shri S.K. Goel JTO (Vigilance) and one CBI Inspector and other CBI staff and one independent witness and a report regarding the test check was prepared at the spot, which was in the handwriting of Shri S.K. Goel JTO (Vigilance). He further testified to the effect that Ex. PW 3/A was the MDF report which bore his signatures and on a perusal of the report, the witness testified to the effect that it related to the test check conducted pertaining to telephone No. 5766808 and 5767106 and during the test check it was found that as per the record, telephone No. 5766898 was to be terminated on MDF pair No. 5-01/07/67 but on physical tracing was found connected to MDF pair 9/7/30 and similarly the telephone No. 5767106 was found terminated on the MDF pair No. 9/7/47, which was correct as per record. On being cross examined this witness testified to the effect that there were two wires emanating from the Main Switch Room which leads to the Main Distribution Frame and stated that on the other side of the Main Distribution Frame, there are two wires that come from the subscriber line and if a subscriber does not make the payment within 15 days of the due date i.e. within the grace period, his outgoing calls are barred from the Switch Room and on receiving instructions from the Finance Department of the MTNL for not receiving the payment, within the prescribed period, incoming calls are also banned from the switch room by giving the necessary command. This witness also testified to the effect that after six months of non payment and on receipt of instructions from the Finance Department, the wires of the subscriber are also disconnected from the MDF. It was inter alia testified 16 by this witness that the Field Record Section maintains the history of the telephone i.e. the date of opening of the telephone and the date of closing of the telephone and if a subscriber's wires are disconnected from the MDF. a slip is received by the MDF from the record department which remains with the MDF Section i.e., slip as received from the Record Department as issued by the Finance Department to the Record Department which is then transmitted to the MDF Section. This witness produced the history sheets of telephone nos. 25766898 dated 23.02.2007 and 25767106 dated 23.02.2007 containing information regarding opening and closing of the said telephone Nos. as Exhibits PW 9/DA and Ex. PW 9/DB on which he identified the signatures of Mr. Budh Sen, Sub Divisional Engineer (FRS-I) and this witness testified to the effect that as per these reports Exhibits PW 9/DA and Ex. PW9/DB, both the telephone Nos. 5767106 and 5766898 were disconnected on account of non payment of charges (DNP) and admitted that as per Ex. PW 9/DA and Ex. PW 9/DB, both these were never reactivated after payment and stated that RNP stands for 'Restoration after Payment'. This witness also testified to the effect that in the Main Distribution Frame Section (MDF) - one cable coming from the premises of various subscribers terminates and the other wire connects the equipment of the exchange and the said cable and equipment are joined by a pair in the Main Distribution Frame section and as and when the pair pertaining to a particular telephone No. of a subscriber becomes faulty, the said pair is changed as per normal practice. This witness admitted that the pair pertaining to telephone No. 5766898 was changed in the normal course and that there was no illegality and malafide therein.
PW 10 examined by the CBI was Shri Surender Kumar Goel SDE Telephone MTNL who testified to having been the JTO Vigilance MTNL New Delhi on 15.03.1996, when he went with the CBI team to the Karol Bagh Telephone Exchange, MDF and was asked to trace the telephone Nos. 5716898 and 5767106 at the MDF. He further stated that Shri N.K. Lal JTO MDF Karol Bagh and Shri S.K. Sharma JTO MDF Karol Bagh, traced the line of the said telephone Nos. and as per the computerized record NE (equipment No.) of the telephone No. 5766898 was found to be 067/02/959 with its MDF pair 01/07/67 but on physical tracing the NE 067/02/059 was found terminated on 17 MDF pair 9/7/30 and the pair was confirmed by taking contact on telephone No. 5766898 and the NE of telephone No. 5767106 was found to be 07/07/038 and MDF pair was 09/07/47 which was found correct on tracing as per the computerized record. Inter alia it was stated by PW 10 that the joint inspection report Ex. PW3/A was prepared on the spot in his handwriting and bore his signatures at point D thereon. This witness on being cross examined on behalf of the accused No. 1 has testified that the STD record with telephone No. 5766898 i.e. Ex. PW 10/D1 (D-24) running into 7 sheets commenced from 01.02.1996 and ended on 19.02.1996 and there were no further records of STD calls of the telephone No. 5766898 after 19.02.1996 in Ex. PW10/D-1 in all the 7 sheets. This witness also testified to the effect that Ex. PW10/D2 running into 6 pages was the computer print out of the STD/ISD calls from telephone Nos. 5767106 and 5766898 which indicated that there was no record of STD calls after 19.02.1996 of both these telephones and testified to the report being Ex. PW10/D2 dated 04.06.1997. This witness also testified to the effect that the cable pair of the telephone No. 5766898 was 01/07/67 and on physical tracing it was found to be 09/07/30, but that this process of changing the cable pair did not reflect any malafide on the part of the staff of the MTNL. He also stated that the MTNL Department has an FRS Department where a register is available with each and every telephone installed in the area which shows the date of opening of particulars and the closing of the telephone and other facilities available.
PW12 examined by the CBI was Mr.Raju Sinha GM/Telephone BSNL Maharashtra who testified to having been posted as the Divisional Engineer (E-10B) Delhi Gate Telephone MTNL Delhi during the period 1997 and testified to Ex. PW10/D2, his report bearing his signatures and on Annexure I and Annexure II thereto and testified to having prepared the report after perusing the detailed calls print out of telephone Nos. 5767106 and 5766898 and testified to Ex.PW10/D1 being the detail calls print out for telephone No. 5766898 for the period 02.10.2005 to 30.11.2005, 01.12.1995 to 31.01.1996 and 01.02.1996 to 19.02.1996 and the detailed calls print out for telephone number 5767106 for the period 07.11.1995 to 30.11.1995, 01.12.1995 to 31.01.1996 and 01.02.1996 to 19.02.1996. He testified to the effect that he had been shown a two party conference instrument and had been informed that both the lines of telephone Nos.
185766898 and 5767106 terminated on the same instrument and that the telephone No. 5766898 had ISD and STD facility whereas on telephone No. 5767106, only the STD facility had been provided and that based on the detailed calls print out and termination of lines on the same instrument, he was asked the probability of use of STD/ISD calls at the same time by both the lines by the method of using conference facility on the telephone instrument and was shown the same in June 1997 by the CBI officer and as he PW 12 Shri Raju Sinha had the technical expertise to give information on this issue as he was doing maintenance of E-10B Exchange at the Delhi Gate Exchange, MTNL Delhi, from 1992 to 1997, he, PW 12 Shri Raju Sinha prepared the report which contained his detailed opinion and stated that he had concluded as per observations made in his report that conversation on called number between two lines with the aid of the two lines terminating instrument had been utilized. On being cross examined this witness stated that 'two line terminating telephone instrument has been utilized' meant that it had the facility to terminate two land line telephone connections. He further testified to the effect that despite disconnection of the telephone connection on account of non payment of dues by the subscriber, incoming calls could still be received in the said period of 15 days only but no outgoing calls could be made through it during the said period of 15 days and after the expiry of the said 15 days, even incoming calls would not be received. This witness categorically denied that in the year 1995-1996, the MTNL was supplying the two way conference instrument and also denied that a customer could install the same with the permission of the MTNL. The witness however testified to the effect that if a subscriber did not pay the bill amount within the prescribed period, the outgoing facility is withdrawn for 15 days but the incoming facilities continued for that period, but if further the payment was still not paid, the incoming facility is also withdrawn, though he stated he did not recall what was the threshold limit for which such facility was withdrawn in the year 1995-96 and stated that on the date of his testimony i.e. 12.09.1991 the threshold limit was Rs. 500/-. He further stated that the issue relating to the non payment of the bill amount and the disconnection of the telephone as a consequence thereof, are both issues dealt with by the Accounts Branch, and though the Accounts Branch sends the order to the telephone exchange In -charge and Commercial Officer for 19 the execution of the disconnection. He further stated that according to policy if a subscriber does not pay the bill within the grace period the ISD facility needed to be withdrawn. He further testified to the letter Ex. PW 12/D-2/X-1 as being the letter of the MTNL and stated that as per the same, certain preventive steps were required to be taken by the MTNL to prevent misuse of the ISD facility by unscrupulous subscribers and according to the same, in the digital exchange, there was a facility to monitor calls for a given threshold limit i.e. once a call went beyond the pre-defined limit of calls units, the exchange used to display the equipment number on which the subscriber was connected and the number of call units made on that equipment number and on such observations, if the same number equipment was repeated, the information was required to be passed on to the Vigilance Unit for analysis and further necessary action and that the pre-defined limit was of 250 call units. The witness further testified to the effect that, if a telephone is disconnected for non payment of bills it was obvious that the arrears thereafter would not get accumulated as the phone would not be in use. This witness further testified to the effect that he himself had not visited the premises where the telephone in question was installed and could not state for which period the telephone was working and in reply to a specific Court query stated that he could not state whether the telephone instrument was in a working order or not on the date 15.03.1996.
PW 14 produced in the witness box by the CBI was Shri Prakash Chander Khanna who testified to the effect that in the year 1996 he was posted as a Divisional Engineer in the Karol Bagh Exchange, MTNL, New Delhi. He further testified to the effect that the relevant procedure adopted in the MTNL was that in both the cases i.e. DNP i.e Disconnection due to Non Payment and RNP i.e. Reconnection on Payment, written instructions were received in the Switch room from the FRS (Fault Repair Section) and thereafter the JTO (Junior Telephone Officer) of the Switch Room carried out the instructions, viz, disconnection, re-connection or any other instruction pertaining to the concerned telephone number, received from the FRS. He further stated that the JTO of the Switch Room Section, who carries out the instruction possesses a "password", which is secret, in the sense that it is known to him only and not to anybody else. He further testified to the effect that in the absence of the knowledge of the 20 password, no command pertaining to the programme pertaining to the aforesaid disconnection or reconnection etc. could be given to the computer. This witness further testified to the effect on seeing the file D-18 Ex. PW 14/A, that the telephone Nos. 5766898 and 5767106 had been disconnected on account of non payment but were found to be functioning and reconnected by the Vigilance Department Officers at the time of inspection. He testified to Ex. PW 14/A-1 and Ex. PW 14/A-2 as being the print outs of observations from 17:21 hours to 19:15 hours on 15.03.1996 of telephone number 5766898 and the observation for the period 19:19 hours to 20:28 hours on 15.03.1996 of telephone No. 5766898 and testified to another observation at points Z to Z1 in the file Ex. PW 14/A for the period 17:21 hours to 19:15 hours for the telephone 5767106. PW 14 Shri Prakash Chander Khanna further testified to Ex. PW 14/A-2 being the print out of the observation between the period 19:19 hours to 20:28 hours on 15.03.1996 for telephone No. 5767106, he further testified to the effect that this print out Ex. PW 14/A-1 and Ex. PW 14/A-2 indicated that through the period of the observations mentioned therein, the relevant telephone Nos. were working and were in use and details of the telephone calls mentioned during the said print outs also find mention in the said print outs. He further testified to Ex. PW 14/A3 being another print out showing the status of the telephone line pertaining to telephone No. 5566898 and 5567106 signed by him. He further testified to the effect that Ex. PW 14/A4 was another document in the file Ex. PW 14/A showing the characteristic facilities which were available in respect of the telephone No. 5766898 and 5767106. He further stated after disconnection of the said telephone Nos. no instructions regarding the reconnection thereof had been received by the Switch Room from the FRS and that the restoration of the said telephones could have been possible only through the computer and the necessary command given in that regard would have been stored therein as also the password of the persons who did the same. He further stated that in view of the said lapse he had spoken to the persons posted in the other telephone exchanges and the Divisional Engineer, Rajouri Garden, Telephone Exchange informed him about such incidents having taken place, pursuant to which a letter was written by the said Divisional Engineer, Rajouri Garden to the Telecom Engineering Centre, Nehru Place, New Delhi, i.e. Mark PW 14/A. This witness further 21 stated that prior to the Vigilance Enquiry there was no complaint regarding unautorized reconnection of the disconnected numbers. During cross examination PW 14 stated that the password is in the knowledge of only the allottee / subscriber of the telephone and in any case, if the subscriber forgot his password and fed the wrong password three times, in the computer, it would stop accepting the secret code of the allottee/subscriber. This witness further denied that the In -charge i.e. the Divisional Engineer of the Telephone Exchange concerned/Switch room is aware of the password of the subscriber and stated that even if the Divisional Engineer of the Telephone Exchange concerned/Switch room is not aware of a particular password of an allottee/subscriber, he can still find it out by giving a set of commands which are only known to him i.e. the Divisional Engineer concerned, to the computer. This witness further stated that he had told the CBI officer that Shri C.S. Arora, JTO (Indoor) had done DNP (disconnected for non payment) of telephone Nos. 5566898 and 5567106 but stated that at the time of the Vigilance surprise checking, it was noticed that the two telephone lines which had been disconnected earlier on account of non payment, were still working and active because they must have been restored by then. He stated however that he did not recall whether the surprise check was done on 15.03.1996 or not, and stated that he could not recall whether the CBI personnel were present at that time. He further stated that without issuance of an order book, ISD/STD cannot be provided, but however stated that he could not recall whether he had ordered for reconnection of these telephones, without issuance of an Order Book but stated that the necessary orders in that regard would come from the Fault Repair Service Section (FRS Section) which had a separate Divisional Engineer and not from the Switch Room where he was posted as Divisional Engineer, and thus he could not have done the same. He further stated that the relevant Order Book pertaining to any work/job after its issuance by the Fault Repair Service Section (FRS Section) is sent to the JTO Switch Room who receives the same and admitted that as he was the Divisional Engineer of the Switch Room, he was overall Incharge including of the JTO of the Switch Room. He further stated that it was part of the duty of the JTO of the switch room to carry out the job mentioned in the order book after its receipt from the Fault Repair Section but denied that telephone Nos. 5566898 and 5567106 had been 22 disconnected by the JTO switch room under his instructions and denied that the said telephones had been restored and reactivated by the JTO switch room under his instructions. He admitted however that the computer print out Ex. PW 14/A-1 bore his signatures and pertained to the period 17:21 hours on 15.03.1996 and to 19:15 hours to 15.03.1996.
On being cross examined on behalf of the accused No. 1, this witness admitted that as Divisional Engineer of the Switch Room he was only concerned with the work pertaining to the switch room and had no control in the Fault Repair Services Section which maintains a register wherein a complete history of the telephone i.e. opening and closing thereof on a daily basis, is maintained. He further stated that he had not made any inquiry from the Fault Repair Service section nor consulted the register maintained therein and admitted that he had handed over to the CBI officers, a letter No. E-10B/RGD-II OMC/97-98/1 dated 07.04.1997 written by DE(E-10B) D-II Rajouri Garden New Delhi to the DE (TEC) Nehru Place New Delhi i.e. Ex. PW 14/DA in which he had complained that some of the telephones which had been disconnected for non payment made were made RNP (Restored) without having been so done by any official and admitted that the DE Rajouri Garden had given four instances mentioned at point A to D in the said letter where there there was a change of status of the telephone number from DNP to RNP and RNP to DNP and change of status automatically without any interference by the staff of the MTNL or subscriber concerned. He further admitted that this difficulty mentioned in that letter arose because of a technical fault of the computer and stated that after receipt of the instruction by the Fault Repair Service Section from the Accounts Branch regarding non payment of telephone bills in respect of a particular telephone, facility of outgoing calls in respect thereto is withdrawn and for doing so, instructions are sent by the Fault Repair Service to the switch room where the needful is done by giving a command to the computer. He further stated that the MDF Section is under the Fault Repair Service Section (FRS Section) and stated that the lines/cables coming from the subscriber telephone are connected to the Main Distribution Frame in the MDF section and in case of non payment in respect of a particular telephone, even after the grace period, necessary instructions are passed on by the 23 Accounts Section to the MDF Section which is a part from the Fault Repair Service Section and that he did not know the working of the MDF Section since he had never worked there. The witness further stated that he did not make any physical enquiry from the JTO Switch Room with regard to DNP/RNP pertaining to telephone Nos. 5767106 and 5766898 and that he did not seek any explanation from any JTO Switch Room in that regard, and further stated that he could not do so, because it was not known from where the instruction to activate the aforesaid telephone Nos. came and therefore the question of seeking an explanation from any particular JTO as of the Switch Room did not arise. He further stated that he did not write any letter like Ex. PW 14/DA to the DE Technical, Nehru Place, New Delhi in relation to the two telephone Nos. in the present case i.e. 5767106 and 5766898 and of their status having been changed from DNP to RNP and RNP to DNP, and admitted that he did not write such a letter on the lines of Ex. PW 14/DA1 as he was satisfied with what had been in the said letter Ex. PW 14/DA1 and he further stated that any telephone which had been disconnected could be re-energized or be made RNP subject to written instructions either of the Senior Officer or that of the Investigating Agency.
Ex.PW14/DA is a letter dated 07.04.1997 bearing No. E 108/RG D-
II/OMC/1997-98/1 of the DE (E-108) D-II, Rajouri Garden Exchange, New Delhi to the Divisional Engineer (TEC) Nehru Place, new Delhi which inter alia states as follows :
"..................... 1.Discrepancies in OCS work :
(a) While changing the status of telephone no.
5407538 to DNP, the status of 5469673 also automatically changed to DNP.
(b) While opening a no. 5491941 with DSC status, the status of telephone no. 5407503 automatically changed to DSC.
(c) Telephone No. 5461941 was found with DS status whereas the no. should have been with normal status when its status was changed from 24 DS to normal, the telephone no. 5491136 (DS status) automatically became normal and its ABOIN started aborting.
(d) Telephone nos. 5460733, 5461942, 5461443, 5461565, 5462446 and 5462740 were made DNP on Ist and 2nd of April 1997. But their status was found normal (RNP) on 3rd and 4th of April, 1997.
When we interrogated these nos. by ABOIN command, the process gets aborted.
When FERI file of all the above nos. was interrogated it was found that word two has the same values for the paired nos. Some prints taken out are attached at Annexure -I.
2. Discrepancies in junction management:
While taking CTETIL list for OKHLA 02 junctions, the junction detail is given for other direction like 511. The list shows total 45 junctions whereas NBEQPT is shown as 30. The list taken is attached at ANNEXURE -2 which is self explanatory .
The above problems are very serious in nature and may invite many technical / administrative problems in settling MRC cases etc. This ECIL OMC is of Mark II Version and is connected to two exchanges RG D-1 and RG D-II. The same type of problems were also observed in RG D-I exchange which have already been intimated alongwith the DSF tape of RG D-1 exchange.
These problems may kindly be attended be experts group on top priority basis."
He further stated that he did not recall whether on 15.03.1996 at the time of the surprise check done by Inspector Bhatti of the CBI, the independent witness from FCI Mr. A.P.S. Sachdeva and Mr. R.S. Yadav, and Mr. M.L. Kochar of the MTNLs Vigilance had visited the MTNL, Karol Bagh Telephone Exchange for a 25 joint surprise check and stated that he did not remember whether on that day the two telephone Nos. 5767106 and 5766898 had been re -energized for the purpose of making test calls as mentioned in Ex. PW2/A. He stated further that the history of a particular telephone containing line details of activation, facilities provided/withdrawn/are provided and the dates of DNP to RNP are available in the FRS Section and that he did not know the details of the billing of the telephone No. 5766898 as mentioned in Ex. PW10/DA as he had no concern with the Accounts/billing department. He further stated that Ex. PW 10/DA was a computerized statement and the detail mentioned therein had not been sent physically but through magnetic tapes i.e. from computers. He further denied that at the time of the joint surprise check conducted by the CBI, the MTNL, the Vigilance and the independent witnesses on 15.03.1996, the two telephone Nos. 5767106 and 5766898 had been energized on his directions for the purpose of making test calls. He further stated that he could not admit or deny whether these two telephones stood disconnected by the MTNL on 19.02.1996 because of non payment and stated that he also stated that he could not admit nor deny that these two telephones remained disconnected on 19.02.1996 till the conduct of the joint surprise check on 15.03.1996. He admitted that in his opinion the telephone Nos. 5767106 and 5766898 which were made DNP by the switch room Section were got RNP only due to software corruption in the computer i.e. a defect in the software without any interference by the MTNL staff and the subscriber. He stated further that in this case there was no application given to him for keeping the said telephone Nos. under observation. He admitted further that on 15.03.1996, the then Dy. SP Shri H.C. Bisht, PW 7, had asked him for the SABLA print outs of the two telephone Nos. in question. He stated further that whenever any telephone connection is kept under SABLA observation, the call details pertaining to the observation period are mentioned in the SABLA print out and stated that in the instant case there was no request by the subscribers of the telephone Nos. for the SABLA observation of the telephone, but admitted that the SABLA print out Ex. PW 14/A1 of both the telephone Nos. 5767106 and 5766898 showed the period of observation on 15.03.1996 w.e.f. 17:20 hours to 19:15 hours, but stated that he did not know whether the raid in the instant case had been 26 conducted between 17:20 hours to 19:15 hours of 15.03.1996. He further stated that he did not know if the call Nos. mentioned under Column B were the called numbers. He further stated that he did not know whether all the called numbers mentioned column under B number of Ex. PW1, Ex. PW14/A1 were reflected in the joint surprise check memo Ex. PW2/A. He admitted further that during the period 17:21 hours to 19:15 hours on 15.03.1996, the two relevant telephone Nos. were in working condition but denied that during this period the two telephone numbers had been activated. He admitted that the JTO had complied with his directions on 11.09.1995 and had given a 'done report' as indicated on Ex. PW 4/DZ and at that time he was working as DE (Indoor). He denied further that vide Ex. PW 14/A-3 the two telephone Nos. 5767106 and 5766898 had been got activated by the CBI for making the test calls, and he denied that on 11.09.1995 no telephone connection could be provided ISD/STD facility without his order. He denied that while working as DE (Indoor) it was his job to inquire about the subscriber who had sought to avail of the facility of ISD and STD on his/her telephone or about his/her genuineness and stated that it was the job of the FRS Section to enquire about the genuineness of the subscriber.
PW 20 put forth in the witness box was Shri Shashi Kant Dabral who testified to having been posted as the Engineering Officer to the General Manager, West- I, MTNL, New Delhi in the year 1995 and thereafter having been posted as SDO P-V Karol Bagh, New Delhi and whilst working there his work according to him related to Block numbers 1 and 2 Dev Nagar, Sat Nagar, Regar Pura and Beadan Pura which were looked after by him. He further stated that for installation of a new telephone connection the relevant order book after its issuance used to be sent to the TP Cell from where it used to be marked to the Junior Telecom Officers and thereafter the Junior Telecom Oficers who were at that time known as Junior Engineers used to note down the complete details in the OB Register and thereafter, as per seniority the work used to be allotted by the Junior Telecom Officer (Junior Engineers) to the line staff and after verification of the address, Annexure A used to be obtained from the subscriber and after this the Junior Telecom Officer (Junior Engineer) used to issue the jumper letter, which used to be sent to the TP Cell / Coordination office and from there the jumper letter straightway used to 27 be sent to the FRS (Records) and during the relevant time there were some Junior Telecom Officers, (Junior Engineers) who used to work under him but stated that none of them were present on that day in the Court. He stated that he had seen the jumper letter 5972 dated 29.09.1995 i.e. Ex. PW 6/A and stated that the signatures thereon at point A could be those of Manohar Singh (i.e. the accused No. 2) but he was not sure. On being cross examined on behalf of the accused Nos. 2 and 3, this witness admitted that the accused Om Prakash and Manohar Singh who were present in the Court had never worked under him.
PW 21 examined by the CBI was Shri Sant Ram, who testified to the effect that in 1995-96 he was working as a Regular Mazdoor at the Regar Pura, Karol Bagh Exchange, New Delhi and his job was to install telephone connections. He stated further that Shri Lal Singh and Brij Lal, Regular Mazdoors were also performing the said job and that ASI Pancham Lal used to hand over the tasks to them. He further stated that at that time the JTO was Shri Manohar Singh and Shri Sharma was the Telephone Inspector. PW 21 further testified to the effect that it was the job of the JTO and of the Telephone Inspector to verify whether the subscriber at whose place a telephone had to be installed was residing/working there or not and that it was the duty of the JTO and Telephone Inspector to verify the address of the subscriber. He stated further that during the period 1995-96 in respect of various telephone connections installed by him, the verification of the addressee used to be done by the JTO and the Telephone Inspector and that during this period he himself had not verified the address of the subscribers.
He stated that during the year 1995, he had installed a telephone connection at house No. 5621/77 Regar Pura, Karol Bagh, New Delhi but that he did not remember the name of the subscriber. He further identified the accused No. 1 Jyoti as being the resident of that house, but stated that he did not know who was the owner of this house 5621/77 Regar Pura and stated that after the installation of the telephone connection, he had orally informed Shri Pancham Lal, the SI who was with them. He further stated that he did not know what was the name of the telephone subscriber of the telephone connection installed in house No. 5221/77, Regar Pura, Karol Bagh, New Delhi. This witness was cross examined by the Ld. PP for the CBI and admitted there 28 were two telephone connections installed by him in the name of the two subscribers Sunita Sharma and Surender Kumar, and admitted that these two connections in the names of the subscribers Sunita Sharma and Surender Kumar were installed by him on the asking of the JTO Manohar Singh but denied that he had told the JTO Manohar Singh that the said Sunita Sharma and Shri Surender Kumar were not residing at house No. 5621/77 Regar Pura, Karol Bagh, New Delhi. He further stated that he used to go to attend and rectify the faults in the telephone installed at 5621/77 Regar Pura, Karol Bagh, New Delhi in respect of complaints received and whenever he went there he met the accused Jyoti but saw neither Ms. Sunita Sharma nor Surender Sharma in the said premises and denied that he had testified falsely in order to save the accused Manohar Singh. On being cross examined on behalf of the accused, this witness stated that no statement of his was recorded by the CBI in his presence and that he could not state the addresses where he had installed the telephones and that he was a Regular Mazdoor and his job was to install the telephones on the direction of the SI and the JTO Manohar Singh at the premises where they were to be installed, and that he had never asked the names of occupants of houses where he had installed the telephones and that he did not know Sunita and Surender Sharma and thus could not identify them. He further stated that he was not aware of the meaning of the word "verification" and was illiterate, and was not aware of the contents of the circular regarding installation of telephones.
PW 23 Shri R.S. Yadav, SDE, MTNL examined by the CBI testified to having been posted as JTO (Vigilance) during the period 1993 to 1999 in the MTNL, New Delhi and testified to having visited the CBI office on 15.03.1996 in connection with the present case along with Mr. A.P.S. Sachdeva and Shri M.L. Kochar i.e. the office of Shri Bisht, Deputy SP CBI/ACB/New Delhi who had taken them to the office of the SP concerned and there they learnt of a complaint of heavy billing, abnormal in respect of residential premises of two telephone Nos. installed in the area of Regar Pura, Karol Bagh and thus it was decided that a surprise check of the premises would be conducted and two independent witnesses ,i.e.,one from the FCI and one from another organization were called and introduced to them. He stated that the surprise team was constituted by Deputy S.P. Shri Bisht comprising of Mr. Bhatti, Mr. Kapoor, Ms. Shobha, Mr. Kochar, 29 Mr. Sachdeva, the two independent witnesses and himself, which surprise team headed towards Regar Pura, Karol Bagh and visited the premises in possession of one Mr. Kohli and an Inspection report of the surprise check conducted was prepared. He stated further that at the time of the inspection it was not known to him as to in whose names the telephone Nos. were and stated that at the time of the inspection there was one more telephone installed in the premises. He testified to the joint surprise check memo Ex. PW 2/A (D-3) bearing his signatures. He further stated that in the year 1996 the telephone bills used to be prepared after two months and that the Accounts Branch was responsible for not sending a bill after two months to a subscriber. He further stated that in respect of complaints of heavy billing appropriate action used to be taken like ascertainment of the nature of the connections, as to whether they were residential/ commercial/industrial and a study of the number of calls billed in respect thereto was made to ascertain whether they were traceable or not and in case of any mischief, action of registration of the FIR could be resorted to. He further stated that in the year 1996 in respect of telephones installed in residential premises, telephone bills on a monthly basis used to be issued in respect of STD/ISD, and PCO bills were to be issued on a fortnightly basis.
PW 24, Shri Narendra Kumar Khanna examined by the prosecution testified to having worked as JTO, Sub Divisional Officer and Commercial Officer in the MTNL and testified that he was aware of the procedure which the MTNL used to follow regarding installation of new telephone connections and stated that at the relevant time, initially the subscriber used to submit an application along with the prescribed fee for installation of a new telephone connection at a particular address mentioning whether it was for commercial use or personal use and there used to be separate application forms for connection meant for commercial use/public call office and for personal use and on the application form meant for commercial use / public call office/(PCO), the photograph of the subscriber also used to be pasted and at the relevant time, a telephone connection meant for personal use could not be used as a PCO. He further stated that fees needed to be paid in respect of a telephone connection meant for commercial use/public call office which used to be as high as compared to the one meant for personal use. He further 30 stated that at the relevant time the connections were not readily available and generally there used to be a waiting list and the consumers were to be informed about the time of tentative installation and on the arrival of the turn, the Tele Printer Cell (TP Cell) situated at the Head Office of the MTNL used to issue the order book (OB) for installation of a new telephone connection, which order book used to be transmitted through the Tele Printer Cell from the Head Office to the Tele Printer Cell of the concerned area and thereafter the hard copy of the order book used to be handed over to the JTO for of the execution of the work. He further stated that the JTO used to carry Annexure A and B to obtain signatures of the subscriber thereon, wherein a certificate to the effect "the connection vide registration No. at the address was for his bonafide use and that he had been residing at the said address" used to be there. He further stated that thereafter the JTO used to instruct his installation team comprising of the lineman and field staff workers to install the connection at the address as per the OB and Annexure. He further stated that the installation party after installation of connection including wiring and testing upto the exchange used to report back to the JTO concerned as also the details of the pair used/connected up to the exchange and after receipt of the report about installation of connection and testing thereof from the installation party, the JTO used to issue a jumper letter to the Record Section of the concerned exchange and on the basis of the jumper letter, the Record Section would issue two instructions one to the MDF In- charge (Main Distribution Frame In-charge) and the other to the Switch In-charge. He testified to the effect that the instruction to the MDF In-charge would be for jumpering between cable side and to the number alloted by the Record Section. He further stated that the other instruction to the Switch Room along with the telephone number allotted details is to energize the said connection and the Record Section thereafter informed the subscriber/customer about the said energization of the instrument and new telephone number allotted to the subscriber and updated the record.
This witness testified to the effect that Ex. PW 24/1 i.e. the circular No. 6- 1/94/-PHB dated 29.04.1994 bore his signatures at point A and stated that as per the same, the telephone connection meant for personal use could be connected with instruments meant for two lines but the same was not permissible in the case of 31 connections meant for PCOs and commercial use. He testified to the effect that if any subscriber used his personal telephone connection installed with the two line instrument for conferencing facility for commercial use, it would be against the rules and no complaint for excessive billing would be entertained. He testified further to circular No. 2-2/86/PHA dated 19.06.1985 Ex. PW 24/2 as bearing his signatures which circular related to the verification of the bonafides at the time of installation of the telephones connection.
On being cross examined on behalf of the accused No. 2 Manohar Singh the witness admitted that the hierarchy of officers at the MTNL was in the descending order as : -
SDO JTO Phone Inspector Sub Inspector Construction Party Line Man and the Mazdoors PW 25 examined by the CBI Shri Surender Kumar, Assistant Grade I with the Food Corporation of India in the year 1996 ,testified to having gone along with Mr. R.K. Aggarwal to the CBI office at the CGO Complex Lodhi Road on the instructions of the Vigilance Department of his office where they met Inspector Bisht who briefed them that they had to go for a search at Regarpura. This witness testified to the effect that from the CBI office they had first gone to Pusa Road, Telephone Exchange where Shri Aggarwal and some other team members were dropped and from there, they proceeded to Regar Pura and reached the house of Mr. Kohli and went to the Second Floor of the said building where they found two telephone insruments which were connected with each other and thereafter the telephone line man was called by the CBI official to the room on 32 the second floor and it was found that on one of the telephones there, there were two lines connected and the other telephone was connected to the first floor. He further testified to the effect that a photographer had also been called to the spot for taking of photographs. He testified to the effect that that the lines which were connected with the telephone were found to be in a working condition. He further testified that the STD and ISD facility was found available on the said telephone line and that the person in whose name the said telephones were, were not residing at that building and that from the spot one person was sent to the CBI office to call a lady constable who arrived and thereafter the search of the premises had been conducted and documents were seized and so were the instruments. He further testified to Ex. PW 2/A as being the joint surprise check memo dated 15.03.1996 prepared in his presence and bearing his signatures. On being cross examined on behalf of the accused No. 2, the witness denied that he had testified falsely being a witness of the CBI.
PW 26 Shri S.R. Singh produced in the witness box testified to the effect that during the period 1994 to January 1997 he was posted as an Inspector in the CBI/ACB/Delhi, and the investigation of this case was assigned to him on 19.03.1996 which he took over from Mr. S.K. Peshin, the then Dy. SP CBI ACB, New Delhi. He further testified to having seized documents on 19.03.1996 as per the seizure memo Ex. PW 4/E from Mr. A.P.S. Sachdeva, AVO (West) MTNL New Delhi and testified to the said seizure memo bearing his signatures. The testimony of this witness indicates that the commercial files of telephone No. 5766898 Ex.PW4/B and of telephone No. 5767106 Ex. PW 4/C were seized apart from several documents relating to outstanding bills in relation to the said two telephone numbers and the print outs of the STD/ISD test calls in respect of these telephone Nos. including the application of Sunita Sharma for restoration of ISD, Jumper letter were in the file Ex. PW 14/A. He further testified to the seizure of six coloured photographs with two negatives on 10.04.1996 vide production cum seizure memo Ex. PW 7/C from Shri Vinod Kumar of Naini Studio Karol Bagh i.e. Ex. PW 7/D and Ex. PW 7/E of which the photographs were in the form of two sets of three copies each prepared from the said two negatives i.e. Mark A1 to Mark A6, which photographs were testified to be Ex. PW 26/3/1, Ex. PW 26/3/2, Ex. PW 26/3/3 & Ex. PW 26/4/1, 33 Ex. PW 26/4/2, Ex. PW 26/4/3 for which a payment of Rs. 60 was made by the CBI as per receipt Ex. PW 26/5 He further testified to the effect that the details of the STD/ISD billing in respect of the said two telephone Nos. were called for from the General Manager (Vigilance) MTNL which were called for vide letter of the SP of the CBI, Shri Anil Kumar dated 23.09.1996 i.e. Ex. PW 26/6. He further testified to having recorded the statements of the witnesses Shri A.P.S. Sachdeva, Shri Shashi Kant Dabral and Shri Pancham Lal, all officials of the MTNL as per what they had stated before him and also testified to the effect that on his transfer on 14.01.1997 from CBI, ACB, New Delhi to CBI, SCB New Delhi, he handed over all the record to Shri Anil Kumar Singh then Inspector, CBI, ACB, New Delhi to whom the further investigation of the case was assigned.
He further testified to the effect that he unable to state whether the bills at page Nos. 1 to 10 in the file Ex. PW 14/A were original bills or not. This witness testified on being cross examined by accused No. 1 that he did not recollect whether he had collected any document during the course of the investigation which would reveal that the telephone bill relating to the said telephone Nos. was delivered to the subscriber.
PW 27 Shri A.K. Singh produced in the witness box was Retd. Inspector of the ACB CBI, New Delhi, the Investigating Officer of the case, who testified to having taken over the investigation from Inspector S.R. Singh on 06.02.1997, and to having conducted the investigation of the case thereafter till the finalization of the investigation and the filling of the charge sheet in the Court. This witness testified to having seized documents as per the receipt memo dated 06.02.1997 Ex. PW 27/A from Shri A.P.S. Sachdeva, the then Assistant Vigilance Officer, MTNL New Delhi, to the seizure of the computer print outs Ex. PW 10/D-1 of which pages 8 to 14, 62 to 70 and 32 to 50 related to telephone No. 5767106 for different periods and page Nos. 1 to 7, 15 to 31 and 53 to 61 were related to telephone Nos. 5766898. He testified to Ex. PW 27/C being the original application form submitted by Shri Shiv Kumar Kohli which he seized vide production memo dated 30 June 1997 i.e. Ex. PW 16/1 from Shri Rich Pal Bunkar, and which had been so supplied in view of the letter Ex.PW 27/G having been written by the witness to Shri S.C. Saini, Food and Supply Office Circular No. 64, Pusa Road, Karol 34 Bagh, New Delhi seeking the original application form submitted by Shri Shiv Kumar Kohli, father of the accused No. 1 Jyoti for obtaining the Ration Card. He further testified to the effect that the report by Shri R. Sinha, Divisional Engineer (E-10B) Delhi Gate Exchange, MTNL prepared on the basis of computer print outs of telephone Nos. 5767106 and 5766898 was Ex. PW 10/D-8 with its Annexures I and II i.e. D-10, which brought out that the two telephone Nos. 5767106 and 5766898 were both telephones attached on a single conference instrument through speech mode.
This witness also testified to having sent the questioned and specimen writing for comparison and report to the CFSL New Delhi through the then SP Anil Kumar vide letter dated 25.07.1997 i.e. Ex. PW 27/D, and the witness testified to the collection of this report along with the forwarding letter Ex. PW 27/F by him, the witness also testified to the effect that through this report Ex. PW 27/A, the handwriting expert had opined that the accused Om Prakash was responsible for writing Q-17 to Q-28 i.e. on Ex. PW 4/D, Ex. PW 27/G and Ex. PW 27/H. He further testified to having recorded the statement of the witnesses Shri M.L. Kochar, Raj Kumar Aggarwal, A.P.S. Sachdeva, Bishan Singh, Rakesh Kumar, Naresh Kumar, Smt. Krishna Aggarwal, Surender Kumar, Raju Sinha, Ramesh Kumar, Smt. Phoolmati, Prakash Chander Khanna, Smt. Shakuntala Diwan, Rajender Kumar Dotania, Richhpal Bunkar, Smt. Lajwanti, Ms. Sati M. Tahilramani, Surender Kumar Goel, R.S. Yadav, Narender Kumar Khanna, Avtar Krishan Kaul, Amar Dutt Lakhera, Brij Lal, Lal Singh and Sant Ram, correctly, and as per what they had testified. He further testified to the effect that the witness Shri Amar Dutt Lakhera had provided him the unpaid bills in relation to the two telephone Nos. for the relevant periods i.e. Ex. PW 27/1 to Ex. PW 27/1 to Ex. PW 27/6.
The witness also testified to the effect that after receipt of the sanction for both the accused Nos. 2 and 3, the charge sheet Ex. PW 27/A which bore his signatures was filed in Court and that along with the charge sheet, the list of witnesses relied upon by the prosecution, the list of documents, list of articles and the sanction orders for prosecution of accused Nos. 2 and 3 and a two line conference facility instrument i.e. a black Panasonic was deposited in the malkhana and the list of articles in relation thereto was filed in the charge sheet. He further testified to the effect that the telephone 35 instrument had been seized from the house of Ms. Jyoti at 5621/77, Regar Pura, Karol Bagh, but stated that he, PW27 Shri A.K. Singh was not a part of the seizure team. He further testified to the effect that on investigation he found that the two telephone connections had been obtained by the accused No. 1 Jyoti on the basis of fake documents. The accused No. 1 Ms. Jyoti was identified by the witness. He further testified to the effect that the investigation conducted in the case indicated that the two telephone connections had been installed at the house of accused No. 1 Ms. Jyoti in connivance with accused No. 2 and 3 whom he identified in Court. He further stated that there was an STD facility on one telephone and ISD facility on another telephone, obtained by accused No. 1 Ms. Jyoti. He further stated that these two telephones and the two lines conference facility Panasonic instrument concerning the facility was provided to many persons without payment of the bill amounting to Rs. 28 lacs approximately and he further testified to the effect that the accused No. 1 Ms. Jyoti was residing at 5621/77 Regar Pura, Karol Bagh, New Delhi during the period for which this bill amounting to Rs. 28 lacs approximately was pending.
It was further testified by the witness that the application forms and Annexures for telephone installation had been sent by him to the CFSL for obtaining the hand writing expert's opinion and that the opinion of the handwriting expert indicated that the accused Om Parkash had signed as Surinder Kumar on the documents pertaining to telephone No. 5767106. PW27 Shri A.K. Singh further testified to the effect that he had also obtained the specimen hand writing of Ms. Jyoti, Shiv Kumar and also of the person Mazhar Islam and Om Parkash in the presence of witnesses for sending for comparison . He inter alia testified to the effect that he could not recall whether he had seen the two line conference instrument at any stage during the investigation as he had not seized the same. He however identified Ex. P1 being the telephone instrument which had been mentioned in the list of articles seized as the two line conference instrument, on comparison of the Model No. mentioned on the Panasonic Automatic Dialer Speaker Phone System On being cross examined by the counsel for accused no. 2, the witness admitted that this was the first case in which he had investigated the MTNL fraud 36 and stated that he can neither admit nor deny whether he had perused the commercial guidelines of the MTNL during the investigation of the case. He further stated that the Commercial Officer allowed registration of the connection on the recommendation of employees dealing with the verification of the genuineness of the subscriber and for registration of the installation of a telephone an application has to be filed with the Commercial Officer with proof of address. He further admitted that the Commercial Officer sanctioned installation of the telephone connection and sends the OB Book to the Junior employee but he did not know what the OB book was. He further stated that as per the statement recorded by the previous I.O., then Inspector S. R. Singh, the JTO conducts the verification of the genuineness of the address of the subscriber and makes it part of the file, but he stated that he could not recall whether the JTO makes a recommendation to the Commercial Officer. He further testified to the effect that he did not recall whether any verification is conducted by the JTO prior to registration or prior to sanction and testified to the effect that in the file D-17 ie Ex. PW4/B there was no document either in the form of a photo copy nor original containing the proof of address. He further testified to the effect that Annexure A is to be filled in by the subscriber at the time of verification of the genuineness of the address of the subscriber by the JTO. He admitted that there was no address mentioned in Annexure V and stated that the address is mentioned in Ex. PW27/2. He further denied that he had deliberately not placed the circular Ex. PW4/DA on the Court record but stated that he could not say whether for registration of a telephone connection any address proof is necessarily to be submitted and stated he could not say whether Ex. PW4/B i.e. the file D-17 the commercial file remained with the Commercial Officer and does not go to JTO. The witness however volunteered that at the time of verification of the address of the subscriber, Annexure A is got filled in by the JTO from the subscriber.
The witness identified Ex. PW27/3 being the list of prosecution witnesses which bore the signatures of Shri S.R.Singh, the previous I.O., from whom he had taken over the investigation of the case. He further stated that he did not ask the Commercial Officer as to why the registration and sanction for installation of telephone connection was accorded in this case without any documentary proof of the 37 subscriber's address. The witness further stated that he did not recall whether or not he had examined the Commercial Officer.
On being further cross examined this witness admitted that both the indoor and outdoor staff worked independently of each other, and that he did not recall to whom the Commercial Officer sends his order amongst his subordinate staff. He stated that he did not recall whether the Commercial Officer sends the Order Book to the DE in the Teleprinter Cell but stated that Annexure A is taken by the JTO to the address of the subscriber for verification of the genuineness of the address of the subscriber and Annexure A is filled in by the subscriber at the spot. He further stated that he was not aware whether Annexure A was sent to the subscriber with an intimation letter by post but stated that it is correct that the OB sent by the Commercial Officer to the SD of the Teleprinter Cell goes to the SDO of the concerned exchange who then marks the OB to the concerned JTO. He further stated that he was not aware whether on receipt of the OB, the JTO marks the same to the concerned Area Inspector who in turn marks it to the Area Sub Inspector. He further stated that he did not know whether the feasibility of installation is verified by the Area Sub Inspector. He stated that he did not know whether the feasibility of cable pairing is checked by the Area Sub Inspector but stated that the MDF i.e. the Main Distribution Frame checks whether the cable pairing reaches from the address of the subscriber to the exchange. He further stated that he did not recall whether he had examined the concerned SDO or concerned DE in this case but stated that he examined the persons who had installed the telephone connections which revealed that they informed Manohar Singh accused no. 2 that the subscribers in whose names the telephones had been sanctioned did not reside at the given address, but stated that he did not recall whether he asked those persons whether they had lodged any written complaint, but denied that he did not so recall as those persons had not so informed him, and stated that those persons examined by him, were Brij Lal PW26 and Lal Singh PW27 as per the list of witnesses of the prosecution whose statements recorded by him are Ex. PW27/4 and Ex. PW27/5 respectively. He further stated that he did not recall as to what was the procedure for installation of a telephone i.e. for starting the telephone connection 38 nor for starting an ISD or STD connection. He stated that he was not aware what a jumper letter is and was not aware whether the SD record on receipt of the jumper letter directs the generalization of the telephone but stated that when a jumper letter reaches the MDF Section, only thereafter can a telephone be energized. He stated the he did not know whether the Divisional Engineer activates the telephone in the MDF connection and stated that he did not recall whether the SD Record Room after activation of the telephone sends the jumper letter to the Commercial Officer and that he did not know whether on receipt of the jumper letter the Commercial Officer verifies the signature of the subscriber. He stated that he did not recall whether the Commercial Officer deputes another person for verification when there is a difference in the signature of the subscriber in the jumper letter and original file but admitted that the DE and SDO work under the directions of the Commercial Officer. He further accepted that the DE and SDO make the telephone connection feasible if they find that it is not feasible though the SDO does not go to the spot for installation of the telephone connection and the field staff up till the JTO informs the SDO if the residence of the subscriber is found locked and stated that he was not aware whether any notice is issued by the SDO or CO to the subscriber when the residence of the subscriber is found locked but categorically stated that the residence of the subscriber in this case was not found locked as per the investigation. The witness admitted that the line men and regular mazdoors install the telephone connection but volunteered that the two telephone connections in this case were installed by a line men and a regular mazdoor and for both telephone connections they had informed accused no. 2 that the subscriber did not reside at the address given. He further stated that the line men and regular mazdoors go to the spot i.e. the address of subscriber for installation of the telephone, on the address of the subscriber for installation of the telephone on the address given by the JTO and the JTO goes to the spot at the time of filling of Annexure-A. He categorically denied that it had not been mentioned in any of the statements of the witnesses that the JTO goes to the spot at the time of getting Annexure A filled in from the subscriber for verification of the genuineness of the address and rather stated that it was mentioned in the statement of Shri S. K. Dabral PW20 at portion B to B1 of Ex. PW27/3 to that effect. He denied that 39 the line men and regular mazdoor go to the spot i.e .address of the subscriber to collect the filled in Annexure A, B & C and hand over the same to JTO and thereafter the jumper letter is issued by the JTO on the basis of filled in Annexures A, B & C brought by the line men and regular mazdoor from the spot from the subscriber. He further stated that he did not recall who makes the jumper letter whether the CO or SDE.
The witness however, testified to the effect that the jumper letter by official dak reaches the MDF Section, whereafter the telephone is energized but stated that he could not answer whether a jumper letter is an intimation by the JTO to the SD Record for installation of the telephone; and that he did not know whether on the receipt of the jumper letter by the SDE, information is sent to the switch room for activating the telephone, that he did not know who was In-charge of the meter room in the Telephone Exchange and that he did not know whether he examined any personnel from the meter room during the investigation conducted by him nor did he recall whether he had examined the SDE In -charge of the meter room to ascertain why a complaint had not been made to his superior when the bills were in excess. He further testified to the effect that the basis of this case was the surprise check in view of excess billing, non payment and verification of genuineness of the subscriber. He testified further to the effect that he did not recall whether he learnt during the course of investigation that the personnel of the meter room would disconnect the connection due to excess billing and non payment. The witness stated further that he did not recall whether he had asked any Accounts Officer as to why the telephone in question was not disconnected despite repeated bills, not being paid. The witness testified to the effect that the JTO Outdoor has duties independent from the Accounts and Indoor staff and stated further that the STD and ISD are activated on an application being filed by the subscriber. He further testified to the effect that during the course of investigation it was learnt by him as informed by the witness Mr. R.K. Dotania that the accused Jyoti had signed the application for activation of ISD as Sunita and he, R.K. Dotania had attested her signatures. He further testified to the effect that the activation and deactivation of the STD/ISD was made by the indoor staff and stated that he did not recall whether he conducted any inquiries from the indoor staff and thus did not recall whether he asked the indoor staff the basis of the activation of 40 the STD and ISD. Inter alia the witness denied that he deliberately had not made the indoor staff who activated the STD/ISD as accused in this case due to some consideration. He however admitted that the JTO Indoor had no connection with the activation and deactivation of the ISD and STD and stated further that he had no knowledge whether the sanction for prosecution of accused No. 2 had been declined earlier as the accused No. 2 did not have the duty of verification of the genuineness of the subscriber. This witness denied that he had made the Junior Officers scapegoats in the matter and stated that he had annexed the relevant rules and regulations of the MTNL with the charge sheet.
He further testified to the effect that Mr. Shiv Kumar Kohli,father of the accused No. 1 ,had been called by him to the CBI CGO Complex as he was also named as an accused in the FIR. He further stated that the two telephone connections involved in this case were installed on separate dates and admitted that the MTNL provides the telephone instrument for installation but stated that in this case the mazdoor had informed that the Panasonic instrument had been provided by the accused No. 1 herself and both telephone connections were connected to the same telephone instrument on different dates and thus he could not state whether there was any instrument provided by the MTNL or not in this case for installation but stated that he had not recorded the statement of the mazdoor Pancham Lal, which statement had been recorded by the previous I.O. and stated that he did not conduct any verification from Pancham Lal about his statement.
The witness further stated that the accused No. 1 and her family were residing in the premises where the two telephone connections were installed for 30 years on rent as informed by the people there and also as informed by the land lady of Ms. Jyoti. He further stated that he did not collect any document of ownership from that person who stated that she was the land lady of Jyoti but stated that during investigation he had found documents i.e. the passport and ration card of Jyoti accused No. 1 at the given address. The witness further stated that the land lady did not produce any rent receipt or any slip to show that she was receiving any rent from Jyoti but denied that the house where the telephone connections were installed belonged to the accused No. 1 Jyoti and denied that she, the accused no.1 was not living there on rent.
41He further stated that there was no application for installation of the telephone connections in this case in the name of Jyoti accused No. 1 and stated that the application for ISD connection was filed in the name of Sunita as already testified by him and stated that he had taken the specimen signatures during investigation and sent the same to the CFSL for comparison qua which the CFSL report Ex. PW 11/A with the forwarding letter of the CFSL Ex. PW 27/F were placed on record.
He further stated that the specimen signatures of accused No. 1 Jyoti are not relied upon and have not been filed on the Court record by the prosecution and the specimen signatures of the accused No. 3 Om Prakash were relied upon as there was positive opinion of the CFSL against him. He further stated that the statement of Mr. S.K. Dabral Officer of the MTNL is on the record to indicate as to who is the person responsible for conducting the verification of the genuineness of the address of the subscriber. He further stated that he did not know whether in the event of doubt of the genuineness of the address of the subscriber a re-verification is conducted and whether the telephone connection application can be rejected. He stated that he did not recall who accords sanction for installation of the ISD connections and stated that he had not conducted any verification of the criteria for installation of the ISD connections. He further stated that he had not conducted any verification of the telephone numbers to which calls were made from the ISD connection but stated that he had gone to Mumbai to conduct the verification in relation to the STD connection, and stated that the telephone bills seized by him during investigation indicated the period during which the telephone connections were energized. He further stated that on the date 15.03.1996 i.e. the date of surprise check by the CBI, the telephones were working as learnt from the MDF Section and the surprise check and by obtaining bills for the relevant period. The witness stated that as per Ex. PW 2/D-B and the portion A to A-1, for the period 19.02.1996 to 22.02.1996 as per the fault history of telephone number 5766898, there was a line break shown and stated that he had conducted a verification from the Divisional Engineer, Karol Bagh with the MTNL and was informed by him that during this period due to a computer software problem some telephone connections which had been disconnected had continued to remain 42 energized and telephone number 5766898 was one of them. He testified further to the effect that the joint surprise check memo D-3 specified the telephone connections which were working as mentioned at portion A to A-1 on page 2 of D-31 i.e. Ex. PW 2/A. He further stated that there was no document on the record to show that the telephone bills for the two telephone connections were delivered at the address of the accused No. 1 Jyoti. He denied that he learnt during investigation that it is the job of the Commercial Officer to verify the genuineness of the address of the subscriber and stated that rather it was the job of the JTO to verify the genuineness of the address of the subscriber but admitted that he had not recorded the statement of the Commercial Officer.
He stated that he did not recall whether the father of the accused Jyoti i.e. accused No. 1 had told him during investigation that there was a paying guest Mohd. Sharif residing at their residence and that the telephone connections had been got installed by him, and that the accused No. 1 Jyoti had no connection with this telephone connections and stated that rather both these telephone connections were installed in the presence of Jyoti (accused No. 1) in the name of Sunita Sharma and Surender Kumar. The witness further denied that the accused No. 1 had no connection with these telephone connections and denied that she had not made any calls from the same. He further stated that he had not recorded any statement of any personnel of the MTNL to indicate that the subscriber forms were filled or submitted by the accused No. 1 Jyoti. He further denied that the telephone connections were not working after the accused Mohd. Sharif left and stated that rather the telephone connections were in operation till the date 15.03.1996 i.e. the date of the surprise check. The witness, in reply to a specific Court query to the witness as to whether there was any person by the name of Mohd. Sharif found during the course of investigation, replied that there was a person by the name of Mazhar Islam stated to be the friend of accused No. 1 Jyoti, whose signatures he had taken and sent to the CFSL, but there was no positive opinion received.
PW 28 produced by the CBI was Shri Pancham Lal. This witness testified to the effect that in the year 1990 he was posted as SI in the MTNL Exchange at Karol Bagh and that accused No. 2 Shri Manohar Singh, the Junior Telecom Officer was his 43 immediate boss. Shri Pancham Lal stated that his job involved installation of telephones and their maintenance and stated that he knew the accused Om Prakash who was serving as an Operator at the Karol Bagh Telephone Exchange at that time. He also identified the accused No. 1 Jyoti as being the subscriber of the MTNL in his section. He further stated that in the file D-17 i.e. Ex. PW 4/B was the OB No. at point A i.e. 115735440 and stated that it related to the installation of a new connection at the residence of one Sunita Sharma at 5821/77 Regar Pura, Karol Bagh and that he had installed this number after the said OB had been given by Shri Manohar Singh. He stated that he had visited the said address with his assistants Shri Lal Singh, Shri Brij Lal and Shri Sant Ram and that he did not find any Sunita Sharma at the address and found the accused no. 1 Jyoti and her mother there. He further stated that when they made inquiries about Sunita Sharma, the accused No. 1 Jyoti asked them not to make those inquiries and asked them to install the phone as had been directed by Shri Manohar Singh the JTO. PW28 Shri Pancham Lal further stated that the accused no. 1 did not inform as to who Sunita Sharma was and this witness further stated that apart from Jyoti and her mother there was no other person found in that house. He further stated that he had installed the phone against the aforesaid OB at the address and stated that he did not have a telephone instrument with him and that the telephone instrument had been provided by the accused Jyoti and that he had connected the said telephone with the said instrument and after installing the phone he had informed the accused No. 2 Manohar Singh i.e. the JTO. He further stated that the OB in the name of Shri Surender Kumar also bore the address 5621/77, Regar Pura, Karol Bagh and that he had installed the telephone line at the said address as per the instructions of Shri Manohar Singh JTO in terms of the said OB number and further stated that there was no male member in the house at that time, and that when he had made inquiries about Surender Kumar, the accused Jyoti stated that he should install the line and not make any inquiries. He further stated that he was there to install the line as per the instructions given to him by Shri Manohar Singh i.e. accused no. 2 as he was working under him. He further stated that had connected the telephone line with the telephone instrument which he carried along with him. The witness further stated that the said telephone lines became operational after 10 to 15 days and that he informed Shri 44 Manohar Singh after returning to the Exchange that he had not met the party against whose name the OB's had been issued and Shri Manohar Singh i.e. the accused No. 2 had said that what he i.e. PW 28 had to do with the party being present or not.
The witness stated that at the time when he visited the premises there was already a telephone installed at the said premises and that he knew this fact as he used to visit the premises for maintaining that telephone line/connection and for this reason he knew Jyoti, the accused No. 1 even before he visited her premises for installing the telephone line in question against the OB's in question.
He admitted on being cross examined on behalf of the CBI that when he visited the premises and met the accused No. 1 Ms. Jyoti and made inquiries about Sunita Sharma she had informed that she herself was Sunita Sharma and that he,i.e. PW 28 should focus on installing the connection. He further admitted that at that time Shri Om Prakash, the accused No. 3 who was identified by PW 28 in Court was also present at the residence of Jyoti i.e. accused No. 1 and that the said Om Prakash had stated that he, i.e PW28 should install the connection properly. He further stated that the telephone instrument which was provided to him by Jyoti was of the Panasonic make which was installed by him at the Second Floor of the residence of Ms. Jyoti. He further admitted that Jyoti after installation of the phone installed against the OB in the name of Sunita Sharma had met him a number of times for making the line operational, but he had asked her to contact the JTO Shri Manohar Singh, as he, PW 28 had completed his part of work. The witness also admitted that he had been asked by Om Prakash, the accused No. 3, at the Telephone Exchange to install the line in the name of Surender Kumar at the same premises where the telephone line in the name of Sunita Sharma had been installed. He further stated that Shri Brij Lal, Lal Singh and Shri Sant Ram were regular mazdoors of the MTNL. He denied that he had not carried the MTNL telephone instrument with him when he visited the premises of Jyoti, the second time for installing the line in the name of Surender Kumar but admitted that this line in the name of Surender Kumar was also connected with the same telephone instrument of the make Panasonic in which the earlier line in the name of Sunita Sharma was connected. He also admitted having made the statement Ex. PW 28/PX-1 (i.e. the statement under Section 161 of the 45 Cr.P.C.) to the CBI. On being cross examined on behalf of the accused No. 1 Jyoti, this witness stated that the statement under Section 161 of the Cr.P.C. Ex. PW 28/PX-1 though it did not bear his signatures was in his own handwriting and he gave the residential address of the premises which he had visited for installing the telephone lines as 5621 gali no. 77 Regar Pura, Karol Bagh, New Delhi and stated that he used to visit the said premises as and when there were complaints received in respect of the telephone connection installed prior to the installation of the telephone connection in the name of Sunita Sharma and Surinder Kumar. He stated further that his duties involved installing the new connection and attending the complaints regarding the existing telephone lines and stated that the inspection of the premises prior to installation was the job of the JTO/PI (Phone Inspector). He denied that accused Jyoti had always introduced herself as Jyoti and had never given her name as being Sunita Sharma. He further stated that he had not carried the telephone instrument in respect of the OB issued in respect of Sunita Sharma to her residence, as the same has not been issued by the MTNL by that time. He further stated that the telephone installed prior to the installation the telephone against the OB in the name of Sunita Sharma was installed on the ground floor but it could be accessed from the first floor as there was an internal line in the premises itself. He denied that at the time when he visited the premises of Jyoti in connection with the installation of the telephone line in the name of Sunita Sharma, apart from Jyoti and her mother, he met one Mohd. Sharif residing on the second floor as a paying guest. He categorically denied that Jyoti (the accused No. 1) had told him that she had nothing to do with the telephone in the name of Sunita Sharma. He also denied that no telephone of the make Panasonic was provided to him by Jyoti (the accused No.1) for connecting the telephone line relating to the OB issued in the name of Sunita Sharma. He further stated that he knew only Jyoti and his mother in her family and no one else. He denied that the father of the accused no.1Jyoti was also available at her residence and stated that he had never seen the father of the accused No. 1 Jyoti. He further stated that at the time when they went for installing a telephone at any premises, they are under no pressure from the subscriber. He further stated that the second visit to the said premises when he had gone with the 46 telephone instrument issued by the MTNL for installation of the telephone connection in the name of Surender Kumar was 4/5 days after the installation of the telephone line in the name of Sunita Sharma. He denied that on the day when he visited the premises for installation of the telephone line against the OB in the name of Shri Surender Kumar, the accused No. 1 Jyoti was not there. He also denied that on that day he met the father of the accused No. 1 Jyoti and also denied that he had met Mohd. Sharif and PW 28 Shri Pancham Lal categorically denied that Mohd. Sharif had got the telephone installed. He stated further that on both the days when he had gone to the premises for installation of the two lines, the regular mazdoors who had accompanied him were the same. He further stated that the CBI never called the accused in his presence for interrogation or otherwise and denied categorically that the accused Jyoti had no connection with the telephones and denied that Jyoti had never requested for installation of the phones. This witness however denied that the accused No. 1 Jyoti had not introduced herself as Sunita Sharma and also denied that he had testified falsely under the pressure of the CBI. The witness on being cross examined on behalf of the accused No. 2 Manohar Singh stated that at the relevant time he was working under the Phone Inspector Shri R.K. Sharma (Phone Inspector) but stated that R.K. Sharma was not his immediate boss and stated that the immediate boss was Shri Manohar Singh (accused No. 2.). The witness further stated that the wire for the telephone connection and the telephone instrument was issued by the office in relation to which an entry was made of the issuance of the wire and of the telephone instrument in the register and that there was a slip issued from the office in relation thereto. This witness also admitted that in case the telephone instrument was provided by the subscriber, the telephone instrument if any, carried at the time of installation as issued from the office used to be returned to the office against proper entry. He further denied that for the phone installation of the line against the OB's he had been instructed by R.K. Sharma, the Phone Inspector to do the cable pairing in order to make an assessment as to whether it would be possible to install the line from the concerned pillar and DP(Distribution Point) and stated that he had installed the line and the pairing was done afterwords. This witness in reply to a specific Court query about the procedure for installing the telephone connection stated that first of all the OB is received in the 47 concerned telephone exchange from the Headquarter and that the OB is assigned to the JTO, who visits the premises of the subscriber for inspection whereafter the OB is given to the Sub Inspector for installation and he further stated that the Phone Inspector is also required to visit the subscriber before the installation, but stated that there were no written instructions stating that the JTO or the Phone Inspector is required to visit the premises of the subscriber before the installation of the line. On being shown Ex. PW 7/DA i.e. the circular of the MTNL bearing No. Vig./Comc/R&B/88-89 dated 20.02.1989, though the witness admitted this circular to be that of the MTNL, he stated that he had seen it for the first time and stated that to his knowledge there was no circular according to which a JTO or Phone Inspector was not required to visit the premises of the subscriber before the installation of the telephone line. He admitted that after making the cable pair and installation of the connection, jumper letter is prepared, and stated that he had installed the telephone connection against the OB's and connected the cable with the DP and his job had been done. He stated further that he had informed the JTO on telephone on the same day that the person in whose name the OB had been issued was not residing there. He admitted that at that point of time he became alive to the fact that the telephone which was sought to be installed in the premises was improper but stated that he had not made any written complaint to his superior officers. He further denied that he had installed the phone at the premises after taking a bribe from the persons present in the premises. He also denied that he had installed another phone after 4/5 days after taking a bribe. He denied that he had not informed the JTO/SDO about the fact that there were no persons by the name of Ms. Sunita Sharma and Shri Surender Kumar residing at the given address and denied that he was deposing against the JTO Shri Manohar Singh (accused No. 2) under pressure of the CBI. He denied having made any complaint to the Vigilance Department or to Senior Officers of the CBI,i.e., neither in writing nor orally. He further stated that he had not been given any written direction by the JTO but stated that he was his boss, and once, he had said something he was supposed to do it, and stated that the directions given to him were oral. He further stated that he had not insisted that unless he was given any instructions in writing by the JTO he would not install the telephone after he had discovered that the telephone installation of the phone was not proper. He further 48 denied that he had installed the phone after taking a bribe from the subscriber and in order to save himself he had falsely implicated the JTO by stating that under his pressure he had installed the phone connections, despite it being improper. The witness denied that after installation of the second telephone connection in the name of Surender Kumar, the accused Manohar Singh JTO had been transferred from Karol Bagh to Janak Puri. He further admitted that it was not proper to connect the telephone line with the telephone instrument provided by the subscriber. He denied further that he had connected the telephone line with the telephone instrument provided by the subscriber after taking a bribe from the subscriber. He further stated that he had not informed the JTO in writing that he had installed the two connections and stated that he was only required to inform orally about the installation.
He further stated that in the telephone exchange there were two categories of staff, one was the field staff and other was the office staff and admitted that the decision taken as to where the telephone connections would be installed is taken by a Commercial Officer and admitted that from the Commercial Officer, the file goes to the Divisional Engineer and from the Divisional Engineer, it goes to the concerned SDO. He further stated that as far as the OB was concerned there was no role of the JTO and stated that it is issued from the office of the Commercial Officer and finally goes down to the SDO office before it is sent to the JTO for installation. He admitted that the role of the SDO was to execute the order of the Commercial Officer. He denied that if the house of the subscriber in whose favour the OB has been issued is found locked it is the duty of the SDO to visit such premises and issue the notice to the subscriber. The witness further stated that the jumper letter is the letter issued for making the telephone line operational and that the jumper letter is written by the JTO to the AE (Assistant Engineer) informing about the installation of the telephone line. He further stated that the line is installed by the field staff and after installation is made, all Annexures relating to the installation are not submitted by the field staff to the JTO, but it is the JTO himself who gets those Annexures filled from the subscriber. He however stated that there was no such rule which provided that the JTO would himself visit the premises and get the Annexures filled but then went on to state that 49 he was not sure about it. He further admitted that the JTO sends the jumper letter to the Tele Printer Cell from where after making entries it is sent to the SDE(Record).
He further stated that for making a telephone line operational the AE Indoor issues order to the DE Switch Room and that the JTO Outdoor has no connection with the JTO Indoor. He further admitted that the JTO Indoor has no connection with the Accounts Branch and admitted that the job of providing STD or ISD facility is of the Divisional Engineer (Switch Room) and not of the JTO outdoor and further admitted that there was no direct connection the between JTO Outdoor and the SDO Record and admitted that along with jumper letter there is an OB letter and Annexures such as subscriber form which are appended for verification. The witness was confronted with the statement under 161 of the Cr.P.C. i.e. Ex.PW 28/X1 wherein the statement that the accused Manohar Singh had said that as to what he i.e. PW 28 had to do with the party being present or not, was not so recorded, and whilst admitting this, denied that he had falsely implicated the accused Manohar Singh (accused No. 2) in order to save himself as he had installed the phone/telephone line after taking a bribe from the subscriber despite discovering the fact that there is no person by the name of Sunita Sharma and Surender Kumar residing at the given address. He denied that he did not bring this fact to the notice of the JTO and that after getting the signatures of the parties on the register he had submitted to the JTO who had in turn issued a jumper letter informing the installation of the line being completed by the outdoor staff. He denied further that he had deposed under the pressure of the CBI after being tutored both in the Court and at his residence. On being cross examined by the accused No. 3 Mr. Om Prakash, the witness denied that he had never met the accused No. 3 Om Pakash at the residence of accused No. 1 Jyoti and denied that the accused No. 3 had not instructed him to install the telephone line at the residence of the accused No. 1 Jyoti, a day before the telephone line was installed at her residence against the OB issued qua the name of Surender Kumar. He further stated that he did not know the name of any other person working in the Telephone Exchange but knew the name of accused No. 3 Om Prakash as he was residing at Regar Pura himself.
Other witnesses produced by the CBI were: -
50PW 6 Shri Rakesh Kumar, Telephone Operator, Karol Bagh during November 1995 who testified to the effect that his duties were to save jumper letters and open telephone numbers and testified to having received the jumper letter in respect of telephone No. 5767106 (which telephone was installed in the name of Surender Kumar) from Om Prakash (i.e. accused No. 3) and testified to the effect that the writing on the reverse of the jumper letter Ex. PW 6/A at point A i.e. the portion which reads to the effect "Received by Om Parkash (TO) 1.11.95" was in his (i.e.PW6's) handwriting;
PW 13 Ms. Shakuntla Dewan produced by the CBI was a retired Assistant Passport Officer who testified to passport bearing No. W072386 pertaining to Jyoti Saraf (i.e. accused No. 1) having been renewed under her signatures with the passport being Ex. PW 13/A;
PW 15 Shri Anant Pal Singh, Assistant Vigilance Officer MTNL New Delhi produced by the CBI testified to having brought the vigilance file pertaining to the instant case and placed on record certified copies of 5 documents i.e. Exhibits PW 15/A to Ex. PW 15/E, of which the contents of Ex. PW 15/A to Ex. PW 15/D have already been adverted to hereinabove. Ex. PW 15/E is the certified copy of the office note dated 15.12.2000 of the General Manager (Vigilance) of the MTNL which indicated that the revocation of suspension of accused No. 2 could be considered by the department only in consultation with the CBI;
PW 16 Shri Rich Pal Bunkar Inspector of the Food and Supply Office , New Delhi testified to having produced the copy of the application of the ration card pertaining to Mr. Shiv Kumar Saraf House No. 5621, Gali No. 77, Regar Pura, New Delhi vide the production memo dated 30 June 1997 i.e. Ex. PW 16/1, which has been testified by PW 27 Inspector Anil Kumar Singh the Investigating Officer to have been seized by him vide his signatures at point B thereon;
PW 18 Ms. Lajwanti Pradhanani produced by the CBI was a businesswomen running M/s. Auto Link Tours and Travels, Mumbai whose testimony relates to the co-accused No. 4 Deepak Saraf who has already been discharged;
PW 19 Ms. Phoolwati produced by the CBI identified the accused No. 1 Jyoti as being a resident of Regar Pura, where she, PW 19 used to earlier reside and stated 51 that Jyoti accused No. 1 was also known as Sweety. She further stated that she had never seen any girl or boy staying in the house of Jyoti, accused No. 1 but stated that she could not say if any boy or girl used to live as a paying guest in the house of accused No. 1 Jyoti. She further stated that she had never gone to the house of the accused Jyoti, but stated that Jyoti used to live on the first floor.
PW 22 Shri Lal Singh produced by the CBI in the witness box was however given up by the prosecution as being unnecessary. As per the statement under Section 161 of the Cr.P.C. of the said witness i.e. Ex. PW 27/5 testified to having been recorded by Inspector Anil Kumar Singh the Investigating Officer with his signatures at point A thereon, the witness was a Regular Mazdoor of the MTNL Karol Bagh who had allegedly accompanied Shri Sant Ram and Shri Brij Lal, Regular Mazdoors of the MTNL to House No. 5621/77, Regar Pura, Karol Bagh on the instructions of Shri Manohar Singh JTO i.e. accused No. 2 and allegedly installed telephone Nos. 5767106 in the name of Surender Kumar and telephone No. 5766898 in the name of Sunita Sharma in the said premises and after installation of the two lines, he allegedly informed accused No. 2 that Ms. Sunita Sharma and Shri Surender Kumar were not residents of House No. 5621/77, Regar Pura, Karol Bagh, Delhi and that this house was in possession of Shri Shiv Kumar Kohli and one telephone had already been installed in this house and he i.e. Shri Lal Singh had visited this house to attend to the telephone complaint and that he i.e. Shri Lal Singh was aware that Jyoti (accused No. 1) also resided there and was the daughter of Shri Shiv Kumar Kohli. As per this allegedly recorded statement Ex. PW 27/5 Om Prakash (accused No. 3) the Operator in the Karol Bagh Exchange and a good friend of accused No. 2, was present on the occasion of installation of both the telephone lines at the said premises, and had instructed him i.e. Mr. Lal Singh to complete the work in a good manner as soon as it was possible.
In their statements under Section 313 of the Cr.P.C. 1973, the accused submitted that they were innocent and denied the alleged incriminating evidence led against them. Four persons in defence evidence were produced by the accused.
DEFENCE EVIDENCE Accused no.1 who contended that she was wholly innocent produced DW3 52 Ms. Cristina in her defence. DW3 Cristina aged 28 years on the date of her testimony dated 16.08.2012, stated that in the year 1996, in the 3 rd month of the year, when her mother used to work in the house of accused no.1 Jyoti whom she recognized, where she, Cristina was also present, around 2/3 pm on a day, the date of which she did not recall, the door bell rang and when she, the witness DW3, opened the door, there were two men on the door and they said that they had come from the Telephone office and she should call some one and as she climbed 4/5 steps, and was climbing upstairs to call accused no.1 Jyoti and her mother, 8/10 persons entered before she could climb.
She further stated that those persons were making a noise while climbing upstairs and were mentioning a telephone number which number she did not recall. She further stated that accused No. 1 and her mother stated that there was no such telephone bearing that number installed there but those persons argued a lot with accused no.1 Jyoti and her mother and stated that they wanted to go upstairs and wanted to know who lived upstairs. DW3 further stated that a paying guest lived there and that paying guest was not there those days as he had gone due to a demise in his family. DW 3 further stated that accused no.1 Jyoti and her mother told those persons that they could not take them upstairs, as the paying guest was not there and the door was closed but those persons went up and forcibly opened the door and on opening the door, there was a telephone found and those persons inquired from accused no.1 Jyoti and her mother about that telephone. The witness further stated that there was a lot of noise and a lot of people from the locality collected and persons from the locality stated that they knew the accused no.1 Jyoti from her childhood and she could not do such a wrong act. In the mean time, the mother of the accused no.1 telephoned the father of accused no.1, who had a shop at Paharganj and he came within half an hour.
This witness has further stated that during this time, a lady named Sunita who used to come to meet the paying guest also came and those persons who had come, made inquiries from that Sunita for a long time and after making inquiries from Sunita, she was allowed to go and those persons continued to be present there. It was further stated by the witness that when the father of the accused no. 1 came, those persons made several inquiries from him and also beat him, as a 53 consequence of which, he was bleeding from his mouth and nose. This witness further stated that on seeing all this, she DW 3 was very frightened and started crying. In reply to a specific Court query, she stated that she was about 11/12 years old at that time. She stated that thereafter, after a few hours, those persons allowed her i.e. DW 3 and her mother to go and her mother went to the house of accused no.1 to work after 2/3 days, but she DW3 did not accompany her mother and when her mother came back, she informed that she had learnt that accused no.1 had been falsely implicated in a false case.
She further stated that her mother worked for 1½ / two years at the house of accused no.1 thereafter and after that, stopped working there and also stated that DW3 had seen the paying guest living in the house of accused no. 1.
During cross-examination by the Ld. Public Prosecutor for the CBI, DW3 stated that the name of the paying guest was Mohd. Sharif who had a slight beard and he used to live on the top floor. She further stated that on the first floor, the accused no.1 and her mother lived there and there was a room above the same in which the paying guest lived. She further stated that there was a phone on the floor on which Jyoti accused no.1, and her family lived and that the mother of Jyoti telephoned her husband from the telephone installed in the portion in which they lived, to call her husband to the spot. She further stated that there was only one phone installed in the room of accused no.1 and denied that there were two telephones in the room of accused no.1 and also denied that there was no paying guest in her room above the room of accused no.1. It was stated by DW 3 categorically that Sunita used to come after one or two days regularly to visit the paying guest living upstairs. Interalia, DW3 denied that there was no person by the name of Sunita who used to come there and also denied that she had testified falsely in order to save the accused no. 1 and rather stated that she had stated what she had seen and also denied that there was no telephone installed on the floor above the floor in which Jyoti was living.
Accused no. 2 Manohar Singh in defence produced DW1 Shri Nihal Singh Saini and DW4 Ram Kishore. DW1 Nihal Singh Saini, the Divisional Engineer, Nangloi, Delhi with the MTNL stated that there were 5 categories of booking of telephones : Non OYT (Own Your Telephone) General, Non OYT Special, OYT general, 54 OYT Special and Tatkal. The witness has further stated that initially, the subscriber makes a booking for a telephone with the Commercial Officer and on production of the papers by the subscriber, the Commercial Officer books the telephone as per the category and on the turn of the subscriber, the Commercial Officer issues the order i.e., OB (Order Booking) and after the issuance of OB, the Commercial Officer issues an intimation letter to the subscriber along with Annexures and the Commercial Officer sends two copies of the OB - one in red colour and one in black to the TP (Tele Printer) Cell. The witness has further stated that there was only one Tele Printer Cell in one Division and TP Cell makes an entry of the OB in the register. The witness has further stated that the SDO also maintains the register and SDO makes an entry of the OB in the register and sends the OB to the Sectional JTO. The Sectional JTO also maintains a register and makes an entry of the OB in his register and the Sectional JTO gives the OB to the field Linesman i.e., to the field staff. The field staff goes to the subscriber at the spot and collects the Annexures to the intimation letter which had been sent by the Commercial Officer to the subscriber and the field staff gets the Annexures filled from the subscriber.
According to DW1, the lines staff gives the pairs i.e., cable pairs to the Sectional JTO and that if the line staff gives the pairs, it indicates the feasibility of installation of the telephone connection at the spot. The witness has further stated that the JTO on receipt of the pairs from the lines staff issues the jumper letter. He further stated in reply to a specific Court query that pairs have numbers and also indicate which pair terminates where. It was further stated by DW 1, that the JTO annexes the red copy and black copy of the OB and also annexes the Annexures and jumper letter and sends the same to the TP Cell, where the TP Cell makes an entry in its register and the TP Cell sends the jumper letter to the Asstt. Engineer, FRS (Fault Repair Service).
The witness has also stated that the personnel at the FRS allots the telephone number against the jumper letter and sends the same to the Switch Room and on receipt of the compliance report, from the Switch Room of the connection of the telephone having been started from the Switch Room which is received by the FRS, the personnel at the FRS connects the telephone number to the pair given by the linesman. The witness further stated that the telephone connection is then started and it is the 55 personnel of the FRS who verify whether the telephone connection has been installed at the correct place and to the correct subscriber. He further stated that the Switch Room also sends the opening meter reading to the FRS at the time of sending the compliance report of connection of the telephone to the FRS and after the telephone connection is started, the FRS sends the red copy of the OB to the Account Section for billing and sends the black copy and Annexure collected from the subscriber to the Commercial Officer. According to DW1, the Commercial Officer places the black copy and Annxure on the original file and tallies the signatures of the subscriber on the Annexure and the original file. It was further testified by DW1 that if the Commercial Officer senses some problem, he writes to the Divisional Engineer for verification of the bonafides of the subscriber and if the Commercial Officer finds that the signatures of the subscriber on the Annexure and on the initial application tally, then the telephone continues to operate. He further stated that if the Divisional Engineer finds any problem in relation to the bona- fides of the subscriber, the telephone connection is stopped.
According to DW1, the JTO Outdoor issues the jumper letter and thereafter, the JTO Outdoor receives a compliance report from the FRS against the jumper letter that a particular number has been allotted. According to this witness, this is the only role of the JTO Outdoor and stated that Annexures for a new connection were filled in by the subscriber and the lineman and the mazdoor hands over the Annexure filled in by the subscriber to the JTO Outdoor.
He further testified to the effect that Ex.PW4/DA dated 20.02.1989 is a departmental circular and is still in operation. It was further stated by DW 1 that the JTO has no connection with the Accounts Section billing and reiterated that in the event of non payment of a telephone bill for a period of three months, the telephone connection is disconnected by the Accounts Section.
On being cross-examined by the Ld. Public Prosecutor for CBI, the witness stated that when the line man goes to the spot for getting the Annexure filled in, which Annexure has been sent by the Commercial Officer with the intimation letter to the subscriber, the line man goes to the subscriber and gets the name and address of the subscriber filled in. He further stated that the field staff cannot come to know 56 whether the person who is filling in the Annexure is the same person who has applied for the telephone connection. He further stated that there is no method for verifying the bonafides of the subscriber at the spot by the field staff and the bona fides are checked when the Annexure comes to the Commercial Officer. He denied that there is no verification of the bonafides of the subscriber done by the field staff, in order to allow for false connections.
On being further cross-examined on behalf of the CBI by Ld. Public Prosecutor, qua the query that without proof of residence and without proof of identity, the verification of the Annexure having been filled in by the correct subscriber cannot be checked, the witness responded that the guidelines of their department were very clear that the field staff does not have to make any verification and has only to install the telephone. The witness however categorically stated that there is no method of checking of the identity of the applicant as being the same as given by the applicant as the original applicant and that till date there is no method of checking of the identity of the applicant as being the same as given by the applicant on the original application. The witness further denied that there is a method of checking of the identity of the applicant as being the same as given on the original application but admitted that there is a photograph put on the original application till date. He further stated that there is a residence proof taken with the photograph on the original application for subscribing to a telephone even now and there is a mention in the detailed instructions as at A to A-1 of the guidelines annexed to Circular dated 08.09.1994 of the General Manager MS of the Corporate Office, Mahanagar Telephone Nigam Limited i.e. Mark A-7 to the effect that the field staff is prohibited from questioning the subscribers and demanding proof of bonafidity from them and stated that if after obtaining confirmation as per the Annexure - II C, they have any doubt they should complete the work and report the matter to the Divisional Engineer or to the Area GM who would correspond further with the subscriber post facto. He further stated that at portions B to B-1 on Mark DW 1/A1 it had been mentioned "no other verification such as check of ration card or identity card/passport is intended". The witness stated that he had identified the signatures of Mr. A.K. Gupta, the General Manager MS on the circular 57 Mark A-7 as the circulars bearing his signatures used to keep coming. He further stated that if the field staff demands proof of bonafidity in the form of identification or proof of residence, in the event of the subscriber complaining to the department, a departmental enquiry is initiated against the employee. He further stated that he was as on the date of his testimony, i.e. 26.07.2012 posted as Divisional Engineer Outdoor.
The witness during cross examination further stated that if the subscriber does not respond at the pair No. when dialled by the FRS personnel, the FRS personnel informs the sectional JTO and the Sectional JTO gets the entire line checked from the exchange to the subscribers premises and if the pair is found faulty, the JTO gets the pair changed. He further stated that the JTO gives in writing to the FRS to change the pair in the duplicate book and sends two copies of the change of the pair and the FRS personnel, after changing the pair returns one copies to the Sectional JTO i.e. to the outdoor JTO. He further stated that without a change in the pair having been made by the Sectional JTO in writing, the pair cannot be changed. This witness further stated that after payment of the unpaid bills, the telephone connection which is disconnected due to non payment of bills can be reconnected, and that without payment of dues, the telephone connection cannot be reconnected after disconnection due to non payment of bills. The witness also stated that a telephone connection after disconnection due to non payment of bills cannot be reconnected automatically. He further denied that he had testified falsely in this case to save the accused and rather stated that if they were guilty, they be punished.
DW 4 produced by accused No. 2 Shri Manohar Singh in his defence, was Mr. Ram Kishore who testified to having been posted as the Sub Divisional Engineer (Cabin) of the Shadipur Telephone Exchange of the MTNL and testified to having attested Ex. DW 4/1 and Ex. DW 4/2. Ex. DW 4/1 is a letter dated 07.10.1995 issued by the SDOP-V Karol Bagh, Telephone Exchange, New Delhi of the MTNL which indicates that the JTO Mr. Manohar Singh was transferred from Sub Divisional SDOP-V Karol Bagh to DEP (OD) JKPND and as per Ex. DW 4/2 the accused Manohar Singh had resumed duty in the afternoon of 07.10.1995 in the office of the DE(OID) Janakpuri, New Delhi in compliance with Ex. DW 4/1.
58The accused No. 3, Shri Om Prakash, produced DW 2 Shri R.P. Saxena in his defence, an In -charge of deputing of personnel of evening duties in the Fault Repair Service in the MTNL, Karol Bagh, New Delhi at the relevant time. This witness testified to the effect that he was the Senior Supervisor at the MTNL, Karol Bagh, New Delhi from 1973 for a period of 10 years at least and that he knew the accused No. 3 Mr. Om Prakash who was an Operator in the FRS MTNL Karol Bagh, New Delhi as he DW 2 was his Supervisor. He further stated that accused No. 3 used to work on the operating board.
He further stated that if a subscriber wanted to fill a form and was unable to fill the technical aspect of the same, he i.e. DW 2 used to get the form filled in with the assistance of any operator and that he also used to get the form filled in by the accused No. 3 and also by other operators. This witness was confronted with D-16 that is Ex. PW 27/G, a duplicate application to the MTNL of one Surender Kumar for a telephone connection at 5621/77, Regar Pura, Karol Bagh, New Delhi - 110 005 and this witness stated that the hand writing at portion Q-18, i.e. the portion Q-18 therein being as depicted as follows in Ex PW27/G: -
" B No. 876588 Hkqxrku dsoy **egkuxj VsyhQksu fuxe fy0** ubZ fnYyh ds i{k esa ns; fMekaM Mz~kQV gh Lohdk;Z A Payment only by D.D. in favour of "Mahanagar Telephone Nigam Ltd." New Delhi DUPLICATE APPLICATION vuqfyfi vkosnu i= ¼bls Hkjdj fu/kkZfjr vkosnu i= ds lkFk Hkst½sa (TO BE COMPLETED AND RETURNED ALONGWITH PRESCRIBED APPLICATION) izkFkhZ dk uke
(i) Name of the applicant Surinder Kumar (Hand written) irk tgka ij VsyhQksu pkfg, Q-18
(ii) Address at which the telephone is required 5621/77, Regar Pura, Karol Bagh, New Delhi - 110005 (Hand written) Admitted by accused No. 3 √ (Hand written) i= O;ogkj ds fy, izkFkhZ dk LFkk;h irk (Off./Res)
(iii) Permanent address of the applicant for correspondence As above (Hand written) mÌs'; ftlds fy, VsyhQksu pkfg, % ljdkjh@O;kikj@vO;kikj √ (Hand written) 59
(iv) Purpose for which connection is required : (Govt./Business/Non-Business.
(Hand crossed) _______ iathdj.k dk iwjk C;kSjk ;fn izkFkhZ jftLVz~kj vkWQ QeZ ;k lkslkbVht vkfn ds lkFk iathd`r gS A
(v) Full Particulars of Registration, registered with Register of firm or of Socities etc._________________________________________________ lk>snkj ;k fgUnw la;qDr ifjokj ds lnL;ksa ds uke
(vi) Name of Partners or member of H.U.F. _______________________
1........................................... 2...........................................
3........................................... 4...........................................
355 7100 6291 (Hand written) 27/3/95
5........................................... 6...........................................
JS.kh ftlesa VsyhQksu pkfg,
Denied
(vii) Category under which the telephone is required OYT (Hand written)
iqjkuk iathdj.k ua0 ,oa fnukad ;fn dksbZ gS A
(viii) Old Registration No. and date if any NIL (Hand written)
bl fLFkfr esa ;fn jftLVz~'s ku ds fy, vkosnu *xSj vks-okbZ-Vh- lkekU;* Js.kh esa fd;k tkrk gSa rks d`i;k ;g Li"V djsa fd D;k vkids uke vFkok vkids Åij iw.kZ:is.k vkfJr O;fDr ds uke tks vkids lkFk mijksDr LFkku ij jgrk gS]a dksbZ VsyhQksu duSD'ku gS ;k iathdj.k ij j[kk gS A
(ix) In case the application is for registration under 'Non-OYT-General' category please state whether a telephone exists stands registered in your name or in the name of any person wholly dependand and living with you at the above premises D;k S.T.D. dh lqfo/kk pkfg, \ Q-19
x) Whether S.T.D. facility is required? Yes (Hand written) ikl esa dke dj jgk VsyhQksu uEcj
xi) Nearest telephone No. Working No (Hand written) Denied Surinder (Hand written) Q-20 izkFkhZ ds gLrk{kj rkjh[k izfr"Bk tSls O;fDrxr@,dek= Lokeh@lk>snkj@drkZ vkfn Date Signature of the applicant States viz. Individual/Prof./Partner/Karta etc. ¼dk;kZy; }kjk Hkjk tkuk pkfg,½ (To be completed by office) 60 Exchange OYT SS 16317 (Hand 14/3 (Hand KA (Hand N-OYT (Hand S written) written) written) crossed) (Hand crossed) G gLrk{kj/Signature"
and stated that the portion Q-18 was in the handwriting of the accused No. 3 Om Prakash and stated that the accused No. 3 Om Prakash had worked under him for several years and there used to be a lot of manual writing, for example the writing of dockets and thus he was familiar with the writing of the accused No. 3 Om Prakash. He further stated that an elderly lady subscriber had come for submitting of the form Ex. PW 27/G i.e. D-16 and thus he had asked the accused No. 3 Mr. Om Prakash to assist the elderly lady in filling up the form.
On being cross examined by the Ld. PP for the CBI, this witness stated that the portions at Q-18 and Q-19 adverted to hereinabove were in the handwriting of accused No. 3 Om Prakash. He further stated that it was the subscriber who signed on the form and not the operator who has been asked to assist in the filling up the form. He further stated that the signatures at Q-20 on Ex. PW 27/G and the signatures at Q-25, Q-26, Q-27 on Ex. PW 27/H (D-16) (i.e. the specimen signatures sheet) did not appear to him to be those of the accused No. 3, but went on further to state that he could not so state whether those signatures on Q-20 on Ex. PW 27/G, at Q-25, Q-26, Q-27, Q-28 on Ex. PW 27/G were those of the accused Mr. Om Prakash or not. He denied further that the accused No. 3 had not filled the portion at Q-18 and Q-19 on Ex. PW 27/G to assist any person in filling the form and denied that accused No. 3 had filled up the form and signed the same in connivance with the other accused persons for making wrongful collections. This witness also denied that he had testified falsely in order to save the accused No. 3 Om Prakash and denied that the accused No. 3 Om Prakash had filled the form Ex. PW 27/G of his own. He further stated that he did not recognize the writings at Q-16 nor the signatures on Q-17 on Ex. PW 4/D i.e. page 22 of D-16 (the said document being allegedly bearing the specimen hand writing of accused 61 No. 3 i.e. Ex. PW 11/S-22 and DW 3 stated that he could not state whether the writing at Q-16 and Q-17 on Ex. PW 4/D was that of the accused No. 3 or not. He further categorically denied that he did not recognise the handwriting of the accused No. 3.
Arguments of the CBI It was submitted on behalf of the prosecution that the Ration Card and passport of the accused No. 1 Jyoti established that she was a resident of 5621/77 Regar Pura, New Delhi and that the raid at her house conducted at 5621/77 Regar Pura, Karol Bagh in the presence of independent witnesses Raj Kumar Aggarwal PW 3 and Surender Kumar PW 25 and the Divisional Engineers of the MTNL brought forth that the telephones in the name of Surender and Sunita were misused by her by making STD and ISD calls with the intention to cheat the MTNL. Further it was submitted on behalf of the prosecution, that though as per the official record of the MTNL, the telephones were disconnected for non payment (DNP) actually they were working in connivance of the accused No. 1 with accused Nos. 2 and 3 which stood established through the technical report of the MDF Section prepared by Mr. S.K. Goel i.e. D-4. It was further submitted on behalf of the prosecution that the Commercial file of telephone No. 5766898 in the name of Sunita D-17 i.e. Ex. P/4 and the Commercial file of telephone No. 5767106 in the name of Surender i.e. D-19 Ex. PW 4/C also established this fact. The prosecution further submitted that as per Ex. PW 24/1 i.e. circular No. 6-1/94-PHB dated 29.04.1994, the Conferencing instrument Ex. P-1 was not allowed to be connected with the telephones in question for commercial use and had been so connected on the instructions of the accused No. 2 i.e. Shri Manohar Singh. The prosecution further contended that the testimony of PW 25 Shri Surender Kumar also brought forth that photographs were taken at the spot at the time of the raid. Interalia, reliance was placed on behalf of the prosecution on the testimony of PW 17, Mr. Rajender Dotania, Chief Manager of the DSIDC resident of 5619/97 Regar Pura, Karol Bagh, New Delhi to contend that it also brought forth that he had attested the signatures of Jyoti, accused No. 1 at Ex. PW 4/DZ on 28.08.1995 on the application and had made an endorsement at Ex. PW 17/A whereby he had attested the signatures of Jyoti who had signed as Sunita.
Qua the accused No. 2, reliance was placed on behalf of the prosecution on 62 the testimony PW 21 Shri Sant Ram the Regular Mazdoor who had stated that he had installed the telephone at the house of the accused No. 1 Jyoti on the directions of the accused No. 2 and who testified that it was the job of the JTO to verify the address of the subscriber and the testimony of PW 28 SI Pancham Lal who stated that he had made inquiries about Sunita at the time of installation of the phone at the house of Jyoti who asked him not to make inquiries as the phone was being installed on the orders of the accused No. 2 and who stated that the accused No. 2 had told him to install the telephones in the name of Sunita and Surender though he PW 28 had informed that he had not met them and only Jyoti was residing there, coupled with the testimony of PW 14 Shri Prakash Chander Khanna, Divisional Engineer, Karol Bagh, Telephone MTNL in the year 1996 who had testified to the effect that despite disconnection the telephone Nos. 5766898 and 5767106 were in operation, which could have been done only through the computer for which the necessary command would have to be given and the password of the person who had done the same would be stored, coupled with the sanction accorded for prosecution of the accused No. 2 by the witness No. 1, Mr. A.K. Kalia all sufficed to bring forth the allegations against the accused No. 2.
Qua the accused No. 3 it was submitted on behalf of the prosecution that the testimony of PW 11, the CFSL expert Mr. N.K. Aggarwal whose report brings forth that the telephone in the fictitious name of Surinder had been installed on the application filled up in the handwriting of accused No. 3 and that the forged signature of Surender on the same tallied with his specimen signature S-1 to S-38 which tallied with Q-17 to Q-18, coupled with the sanction accorded for his prosecution by Shri Om Prakash sufficed to bring forth the allegations levelled against the accused No. 3.
SUBMISSONS OF ACCUSED In addition to oral arguments, written arguments on behalf of the accused No. 1 were submitted wherein it was inter alia submitted that after registration of the RC in the instant case on the basis of the complaint dated 15.03.1996 made by Shri H.C. Bisht, DSP, CBI ACB in which he inter alia had stated that it was suspected that the unauthorized use of the conference instrument had been operating in the form of a racket 63 for unauthorized use for connecting overseas/ISD calls and various sources of money seemed to have been collected by Shri Shiv Kumar Kohli and members of his family in view of extension of this facility through unknown operators agents with the active connivance of unknown MTNL staff New Delhi, which was stated to be further evident from the installation of the two telephone Nos. 5767106 and 577898 at the said premises i.e. 5621/77, Regar Pura, Karol Bagh in fake names without any verification regarding the bonafides of the subscriber and it was submitted that on the investigation of this RC having been entrusted to Shri S.K. Peshin, Deputy SP, CBI ACB Delhi, during the course of investigation, the CBI arrested only Shri Shiv Kumar Kohli, the father of the accused No. 1 who had been enlarged on bail by the Court and thereafter the accused No. 1 and her mother Ms. Vimla also joined the investigation before the CBI officials and thereafter the accused No. 1 moved an application seeking anticipatory bail under Section 438 of the Cr.P.C. 1973 and vide order dated 25.03.1996 and 04.04.1996, the accused No. 1 was directed to appear before the Court of the Ld. MM dealing with CBI cases and on 08.04.1996 ,the CBI was also directed to make a formal request before the Ld. MM for taking of specimen writing of the accused No. 1 in accordance with law. It has further been submitted on behalf of the accused No.1 that on 08.04.1996 an application was filed by the CBI before the Ld. MM Patiala House Courts for taking of the specimen signatures of the specimen of the accused No. 1, which was allowed on 15.04.1996 qua which vide order dated 15.04.1996, the Investigating Officer Shri S.R. Singh, CBI, ACB Delhi was allowed to take the specimen of the accused No. 1 in Court and the accused No. 1 had thus given her specimen signatures on 38 sheets which were handed over to Investigating Officer for comparison and the CFSL report.
It has further been submitted on behalf of the accused No. 1 that thereafter the CFSL report received qua the specimen handwriting of the accused No. 1 was in favour of the accused No. 1 and against the prosecution and thus the prosecution did not rely upon the same and did not file this CFSL report which was favourable qua the specimen handwriting of the accused No. 1, on the Court record.
It was further submitted on behalf of the accused No.1 that the testimonies of PW 1 Shri A.K. Kalia, PW 6 Shri Rakesh Kumar, PW 11 Shri N.K. Aggarwal, 64 PW 13 Ms. Shakuntala Dewan, PW 15 Shri Anant Pal Singh, PW 16 Shri Rich Pal Bunkar, PW 18 Ms. Lajwanti Pardhanani, PW 19 Ms. Phoolwati, PW 20 Shri Shashi Kant, PW 22 Shri Lal Singh, PW 24 Shri Narendra Kumar Khanna do not in any manner bring forth the prosecution version against the accused No. 1 and thus do not incriminate her at all.
It has further been submitted on behalf of the accused No. 1, that the testimony of PW 2 Mr. M.L. Kochar, which suffered from many contradictions in his deposition was not reliable and was not trustworthy and was doubtful and variant, at the stage of the cross examination and examination in chief. On behalf of the accused No. 1 it was further submitted that the testimony of PW 3 Shri Raj Kumar Aggarwal who had turned hostile could not be relied upon, that the testimony of PW 4 Shri A.P.S. Sachdeva also does not support the prosecution version specially as this witness had stated that he could not state whether these two telephones had been disconnected by the department on 19.02.1996 and had also admitted that the wire which was disconnected from the MDF section could again be connected by the department, coupled with the factum that the witness had given a contrary statement in relation to the working and disconnection of the telephone No. 5766898 in view of Ex. PW 4/DY the history sheet of the said telephone indicating that it was disconnected on 28.10.1995 coupled with the factum that the witness did not deny that he met one Mohd. Sharif at the premises in question and stated that he did not recall whether they met Mohd. Sharif at the said premises and also admitted that when Shiv Kumar Kohli (the father of the accused No.
1) was called from his shop, he had told at the first instance to the CBI that the room in question was occupied by his paying guest Shri Mohd. Sharif, coupled with the factum that he stated that he did not remember if any girl by the name of Sunita met them at the time of the raid and that thus the testimony of PW 4 did not aid the prosecution at all.
It was further submitted on behalf of the accused No. 1, that the testimony of PW 5 Shri Bishan Singh an SDE, FRS, Nangloi also did not support the prosecution version, for in his cross examination he admitted that he had stated before the CBI in his statement that both the telephones had been disconnected for non payment on 19.02.1996, as instruction for disconnection of the telephone had been received in their section from the accounts 65 office telephone revenue and stated that after receipt of such instructions, they write to the switch room for disconnection by telephone. This witness also admitted through cross examination that if any investigating agency makes a request for investigation to the superior officer in the switch room for opening a number, the same can be opened for outgoing calls.
It was further submitted on behalf of the accused No. 1 that the testimony of PW 7 who was an official interested witness of the CBI was also not reliable and that he had stated that the surprise check had been made in the premises in question and on entering the bed room of the second floor of the said premises it had been noticed that that the said telephones had been found connected with a Panasonic instrument, whereas on the other hand, PW 8 Smt. Krishna Aggarwal had stated during cross examination that there was no second floor in the premises in question though there are stairs to go to the terrace of the said premises. It was further submitted on behalf of the accused No. 1 that the testimony of PW 8 did not establish that the premises in question had been let out to Shiv Kumar Kohli; that the testimony of PW 9 Shi Naresh Kumar Lall recorded on 22.11.2006, 22.01.2009 and 13.04.2009 brought forth that the telephone Nos.5767106 and 5666898 had been disconnected for non payment of charges as per Ex. PW 9/DA and Ex. PW 9/D-B and had never been reactivated; that the testimony of PW 10 Shri Surender Kumar Goel on cross examination brought forth that the history sheets of the record of the STD calls of telephone Nos. 5766898 Ex. PW 10/D-1 indicated that in all the 17 sheets there was no record of STD calls after 19.02.1996; that the testimony of PW 12 who has denied having visited the premises at any stage does not assist the prosecution version at all; that the testimony of PW 14 Shri Prakash Chander Khanna does not assist the prosecution as the entire prosecution version is demolished by his testimony as he stated that the words "software corruption in the computer meant the defect in the software without any interference of the MTNL staff and the subscriber" and his admission that in his opinion telephone No. 5767106 and 5766898 which had been made DNP (disconnected due to non payment) by the switch room section had become RNP (reconnected on payment) only due to software corruption and it has been thus submitted on behalf of the accused No. 1 66 that the entire prosecution version thus collapses.
It has further been submitted on behalf of the accused No. 1 that the testimony of PW 17 Shri Rajender Dotania was not reliable as the specimen signature of accused No. 1 Jyoti had already been taken by the CBI in Court and had been sent to CFSL for comparison with the signatures of the accused Jyoti and the report of the CFSL was in favour of the accused Jyoti, and furthermore the witness has vacillated throughout the testimony.
As regards the testimony of PW 21 Shri Sant Ram, Regular Mazdoor of the MTNL it has been submitted that he had not identified the accused No. 1, nor did he give the addresses of the premises in question where the telephone was installed and he had been declared hostile by the prosecution and did not support the prosecution version.
Qua the testimony of PW 23, it has been submitted on behalf of the accused No. 1 that the testimony is not reliable as he did not recall the numbers of the telephones in question nor the address of the premises where the telephones were installed coupled with the factum that he had not seen the telephone bills and could not tell about the amount of the bills outstanding nor the contents of the inspection report. Likewise it was submitted on behalf of the accused No. 1 that the testimony of PW 25 which varied in the examination, i.e. on cross examination from the examination in chief, was not reliable. As regards the testimony of PW 26 it has been submitted on behalf of the accused No. 1 that he had not done a proper investigation and his cross examination established that he had not conducted any investigation in relation to the application form submitted by the subscriber for getting the telephone connections, nor had he conducted any investigation in relation to the documents submitted with the application. The testimony of PW 27 Inspector Anil Kumar Singh, the Second Investigating Officer was assailed on behalf of the accused No. 1, submitting to the effect that he had not conducted the proper investigation and it has been categorically asserted that even this witness in cross examination has not denied that the father of the accused No. 1 had told him during investigation that there was a paying guest by the name of Mohd. Sharif residing at the said address and that the telephone connections were in question had been got installed by him. It was further submitted on behalf of the accused No. 1 that 67 the credibility of PW 28 was wholly doubtful as he had testified that he had come to the Court in the vehicle belonging to the CBI, that he had written a statement under Section 161 of the Cr.P.C. and had signed the same which was thus hit by the provisions of Section 162 of the Cr.P.C. and that the statement produced by the CBI was not in the handwriting of the witness, through he had stated that he had written the statement and that thus the CBI had withheld the statement written by the witness, and that the testimony of the witness was full of contradictions and unreliable.
It has further been submitted on behalf of the accused No. 1 that the testimony of DW 3 Ms. Cristina produced by the accused No. 1 in her defence brought forth her innocence in as much as, she had testified that she was present at the spot when the raid was conducted, that she knew the Jyoti accused No. 1 for many years and that Mohd. Sharif a tenant used to reside in the premises and that Sunita was his friend and during the time of the raid, the said Sunita had also come to the spot and had been interrogated by the CBI and that she had stated that the CBI had found a telephone installed in the room when the paying guest used to reside and it has thus been submitted on behalf of the accused No. 1 that the testimony of DW 3 established that the accused No. 1 Jyoti was not Sunita and that Sunita was present at the spot and used to come to the house to meet the paying guest Mohd. Sharif. It has thus been submitted on behalf of the accused No. 1 that the accused No. 1, Ms. Jyoti was entitled to be acquitted.
On behalf of the accused No. 2 through the oral and written submissions addressed, it was submitted that the allegations levelled against the accused No. 2 did not stand established even remotely and it has been submitted that Ex. DW 4/1 and Ex. DW 4/2 the documents relating to the transfer orders of the accused No. 2 Manohar Singh from the Regar Pura, Karol Bagh Telephone Exchange to the Janak Puri, New Delhi Exchange on rotational basis established that the accused No. 2 had joined as JTO at DE Outdoor) Janakpuri Delhi on 07.10.1995 and the allegations in the charge sheet were to the effect that the telephone Nos. 5767898 in the name of Sunita was energized on 05.10.1995 and the telephone No. 5767106 in the name of Surender Kumar was energized on 07.11.1995 and it has thus been submitted on behalf of the accused No. 2, that the accused No. 2 was practically removed far away from the scene for almost the 68 entire period of working of the two telephones at the address mentioned in the charge sheet and thus the accused No. 2 had no jurisdiction over the place where the telephone was installed or was to be installed.
It has further been submitted on behalf of the accused No. 2 that the testimony of PW 28 Shri Pancham Lal who had testified to the effect that he had told the accused No. 2 after return to the exchange that at the spot he had not met the party against whose name the OB had been issued, qua which accused No. 2 had stated that as to what he had to do with the party being present and it has further been submitted on behalf of the accused No. 2, that the said witness as per the prosecution version had informed the accused No. 2 after execution of the work and as to why he did not inform the JTO i.e. accused No. 2 immediately and why he illegally installed the telephone instrument of the make Panasonic in violation of rule 3(2) of the CCS Conduct Rules 1964, and that too without written directions.
It has further been submitted on behalf of the accused that the field staff had chosen to remain silent even after two days time of energizing the telephone Nos. 5766898 and did not tell this fact to the successor of the accused No. 2 nor to any Senior Officer of the MTNL and it has further been submitted that telephone No. 57671106 had been energized only on 07.11.1995. It was further submitted on behalf of the accused No. 2 that the testimony of this witness is wholly unreliable.
It was further submitted on behalf of the accused No. 2 that the Investigating Officer of the case had admitted in cross examination that he could neither admit nor deny whether he had perused the commercial guidelines of the MTNL during the investigation of the case and stated that the Investigating Officer had neither made the Commercial Officer who had sanctioned the installation of the telephone, an accused, nor a witness in the case for reasons best known to him, for despite the fact that the Commercial Officer had sanctioned the installation of the telephone connection without documentary proof of the subscribers' addresses, the Investigating Officer had not verified from the MTNL officer of the Account Sections of the payment in relation to the telephone. It has further been submitted on behalf of the accused No. 2 that initially the sanction for prosecution sought by the CBI from GM (MTNL) of the case No. 2 had been 69 declined by the CGM in view of the instruction of the department that the field staff is not supposed to go for a physical verification of the subscriber, and it was further submitted that the version of the officials examined was not correct. It was further submitted on behalf of the accused No. 2, that the CBI explained that it had sufficient evidence against the official and insisted the issuance of the sanction for prosecution and having convinced the disciplinary authority of the accused No. 2 i.e. the CGM NTR DOT i.e. the lending authority of the accused No. 2 to the MTNL, thereafter issued the sanction for prosecution against the accused No. 2, which indicates that the sanction for prosecution had been given on the insistence / pressure of the CBI without any independent application of the mind at the time of the grant of the sanction. It has further been submitted on behalf of the accused No. 2 that even as per Ex. PW 15/A the GM (Vigilance) Shri Ujagar Singh in his letter dated 20.01.1998 had stated to the CBI that the circular did not indicate any responsibility of the JTO concerned for personal verification of the genuineness of the subscriber in the case of OYT(G) category of telephones to which the telephone under reference belonged to and that he had requested the CBI to reconcile the draft prosecution sanction in relation to accused No. 2 in view of this discrepancy.
It was further submitted on behalf of the accused No. 2 that the prosecution had failed to bring forth any document of the MTNL rules and regulations which cast a duty on the JTO to verify the genuineness of the subscriber in the OYT General Telephone installation and in fact in case of non OYT Special or OYT Special with respect to installation of telephone, a duty was cast upon the JTO / PI to verify the bonafidity of the subscriber, but that in the present case both the telephone Nos. in question were of OYT General category and thus there was a duty cast on the JTO (Outdoor)/PI to verify the bonafidity of the subscriber, in terms of Ex. P15/A, it was however stated on behalf of the accused No. 2 that as per Ex. PW 15/C the commercial guidelines of the MTNL, the existing commercial rules merely required obtaining a confirmation from the subscriber in the format as per prescribed Annexures A, B, C i.e. the slightly modified version of Annexure II, and that there was no further verification such as a ration card or identity card / passport required and that the field staff was prohibited from questioning the subscribers and demanding proof of bonafidity from 70 them and that if after obtaining confirmation as per the Annexure II C they had any doubt, they were to complete the work and report the matter through the Divisional Engineer to the area GM who would further correspond with the subscribers post facto. It was thus submitted on behalf of the accused No. 2 that the witnesses Shri Sant Ram Regular Mazdoor and Shri Pancham Lal SI had stated due to ignorance of the MTNL rules and circulars that a duty was cast upon the JTO Manohar Singh to verify the bonafidity of the subscriber at the time of installation of telephone.
It was further submitted on behalf of the accused No. 2 that there was no offence under Section 420 of the IPC 1860 nor under Sections 467, 468, 471 of the IPC 1860 made out against the accused No. 2 as he had deceived no one and he did not forge any documents and there was nothing on the record to indicate that he had prevented or obstructed the transmission of the message and thus there was nothing to indicate that the accused No. 2 had violated the provision of Section 25 of the Indian Telegraph Act 1885, nor was there anything on the record through the evidence produced by the prosecution to indicate that there had been any illegal means adopted by the accused No. 2 to amount to misconduct or corruption in terms of Section 13(1)(d) of the Prevention of Corruption Act,1988.
According to the accused No. 2 the allegations in the charge sheet that the accused No. 2 had issued and handed over the jumper letter of telephone No. 5767106 to the co-accused Om Prakash, were erroneous and that the prosecution witnesses PW 20 and PW 28 and the defence witness DW 1 had not supported the version of the CBI and that it was not the duty of the JTO to hand over the jumper letter to the Telephone Operator and rather it was the duty of the JTO to only issue the jumper letter from where the jumper letter goes to the Tele Printer Cell, where it was registered, where after it was the duty of the persons in the Tele Printer Cell to transfer it to the Telephone Exchange i.e. the Record Section (SDE Record). It was thus submitted on behalf of the accused No. 2 that the prosecution had failed to prove any statutory liability or rule whereby a duty was cast upon the JTO to verify the genuineness of the subscriber, and the accused No. 2 reiterated that the clarification of the GM (Vigilance) Shri Ujagar Singh vide Ex. PW 15/A a letter dated 20.01.1998 to Shri Anil Kumar SP, CBI with reference to his letter 71 seeking clarification of the circular No. 2-2/86-PHA dated 19.06.1995 i.e. Ex. PW 24/2 whereby the CBI had asked for a verification whether it could be inferred that the JTO of the area was to physically verify the genuineness of the subscriber and get the Annexure A filled and signed by the subscriber in his presence, to which the GM (Vigilance) had replied that this circular did not indicate any responsibility of the JTO concerned for personal verification of the genuineness of the subscriber in the case of OYT (G) category of telephones. On behalf of the accused No. 2 it was reiterated that Ex. PW 15/B i.e. DOT 2-2/86/PHA dated 26.06.1995 issued by the ADG (PHA) (DOT Sanchar Bhawan, New Delhi categorically stated that at the time of provision of the new telephone connection under non-OYT, SS, OYT-General and OYT Special category the check of bonafidities of the subscriber were not necessary as the telephone connection could be provided at the address given by the subscriber. Reliance was also placed on behalf of the accused No. 2 on Ex.PW18/C, the commercial guidelines of the MTNL - which provide, "Existing commercial rules merely required obtaining a confirmation from the subscriber in the format as per prescribed Annexures A, B & C (slightly modified verison of which are attached as Annexure II). Annexure IIA & IIB are in respect of new telephone connection and Annexure IIC is for the shift of telephone. No other verification such as check of ration card or identity card/passport etc. is intended.
"it may please be noted that the field staff is prohibited from questioning subscribers and demanding proof of bona fidity from them. If after obtaining confirmation as per the Annexure IIC, they have any doubt they should complete the work and report the matter through the Divisional Engineer to the Area GM who would correspond further with the subscribers post facto".
It was however submitted on behalf of the accused No. 2 that the testimony of the 28 witnesses examined by the prosecution did not suffice to bring forth the charges of allegations levelled against the accused even remotely and it was rather submitted on behalf of the accused No. 2 that the testimony of DW 1 established the innocence of the accused no. 2.
On behalf of the accused No. 3 it was submitted orally and through the written arguments that the testimony of the prosecution witnesses brought forth that there 72 was no role of the Telephone Operator in any of the processes and there was no occasion for him to connive with the other accused in relation to connection or disconnection of the telephone in question. It has further been submitted on behalf of the accused No. 3 that he had produced the witness DW 2 Shri R.P. Saxena who had explained the circumstances in which the form in the instant case had been filled by the accused No. 3 and that the prosecution had failed to impeach the credibility of the testimony of this witness and thus it was established that the testimony of the said witness could be sufficiently relied upon. It has thus been submitted on behalf of the accused No. 3 that he was entitled to be acquitted.
JUDGMENTS RELIED UPON ON BEHALF OF ACCUSED Reliance was placed on behalf of the accused no.2 on the verdict of the Hon'ble Supreme Court in the case, SVL Murthy Vs. State 2009 - Laws (SC) - 05-57 to contend that there was nothing on brought forth on record by the prosecution to establish that the accused No. 2 had any fraudulent or dishonest intention at any stage whatsoever and that there had never been any interaction between the accused No. 2 and the accused No. 1 at any stage and thus there was no occasion for the alleged conspiracy to have emerged and it was also submitted on behalf of the accused No. 2 whilst placing reliance on the verdict of the Hon'ble Supreme Court in the case, State of Madhya Pradesh Vs. Sheetla Shahai and Othes 2009 Cr.L.J.4436 to contend that there was not an iota of evidence on record to indicate that the accused No. 2 had entered into any criminal conspiracy with accused Nos. 1 and 3 for the commission of any criminal act and it has been submitted whilst placing reliance on the verdict of the Hon'ble Supreme Court in the case, Kehar Singh and others State (Delhi Administration) SCC 609 that the gist of the offence of conspiracy lies not, in doing the act, or effecting the purpose for which the conspiracy is formed in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties though agreement and that agreement is essential, and that mere knowledge, or even discussion, of the plan is not, per se enough, and it was thus submitted on behalf of the accused No. 2 that as observed vide para 58 of the said judgment relied upon, a distinction must be borne in mind by the Court that whereas at the time of framing of the charge, the Court may take into 73 consideration the fact as to whether the accused might have committed the offence or not; at the time of recording of a judgment of conviction, the prosecution is required to prove beyond a reasonable doubt that the accused had committed the offence and it was submitted on behalf of the accused that the prosecution had failed miserably and had been unable to establish the allegations levelled against the accused no. 2 even remotely.
Reliance was also placed on behalf of the accused No. 2 on the verdict of the Hon'ble Supreme Court in the case C. Chenga Reddy and Others Vs. State of Andhra Pradesh, AIR 1996 Supreme Court 3390 to contend that where a case is based purely on circumstantial evidence and there are certain illegalities found to have been committed, in the absence of clinching evidence and in the absence of a chain of evidence leading to the irresistible conclusion as to the guilt of the accused, the accused would be entitled to the benefit of a reasonable doubt.
Reliance was also placed on behalf of the accused no.2 on the verdict of the Hon'ble Supreme Court in the case Mir Nagvi Askari Vs. CBI, 2009 - Laws SC - 8-136 to contend that though it was not necessary for the prosecution to establish to bring home the charge of conspiracy that each of the conspirators had the knowledge of what the collaborator would do, as long as it was known that the collaborator would put the goods or service to any unlawful use and it was submitted that there was nothing at all on the record through the evidence led by the prosecution which brought forth the said charge of conspiracy in the matter, and it was further submitted that if some irregularities had been committed in violation or breach of codal provisions, circulars and departmental instructions, they they may give rise to strong suspicion in regard to the bonafides of the official of the department and their link with the accused, but that suspicion further cannot be a substitute for proof, where there is no evidence on the record to lead to the irresistible conclusion consistent only with the hypothesis of the guilt of the accused which is wholly inconsistent with his innocence, and that the prosecution cannot be held to have established its case beyond a reasonable doubt.
Reliance was also placed on behalf of the accused on the verdict of the Hon'ble High Court of Kerala in the case of Sreedharan A. Vs. Deputy SP of Police 2011 - LAWS (Ker) - 4-117 to contend that in the absence of any document having been 74 brought by the prosecution to indicate as to what were the duties of the public servant, i.e. the accused no. 2 which he was alleged to have violated, in the absence of any explanation from the prosecution for its non production, the charges levelled against the accused no. 2, the public servant of the alleged commission of the offence under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act' 1988 cannot at all be held to be established to bring forth a criminal misconduct; though it may amount to a civil misconduct and that the Court cannot rely upon oral evidence alone.
On behalf of the accused no. 2 and 3, reliance was also placed on the verdict of the Hon'ble High Court of Madras in the case, Selvaraju and Others Vs. State a verdict dated 24.08.2009 in Criminal Appeal 253, 254, 287, 298, 313 of 2000 to contend that there was nothing to prove that the accused no. 2 the public servant was in conspiracy with accused No. 1 for the commission of any offence Reliance was also placed on behalf of the accused no. 2 and 3 on the verdict of the Hon'ble Supreme Court in the case K.R. Purushothaman Vs. State of Kerala 2005 Cr.L.J.4648 to contend to the effect that the allegations against the accused No. 2 and 3 of the commission of offences punishable under the Prevention of Corruption Act 1988 were not brought forth even remotely.
Interalia, reliance was placed on behalf of the accused on the verdict of the Hon'ble High Court of Delhi in the case, Sumit Gupta Vs. State, a verdict dated 20.03.2009 in Criminal Appeal No. 40/2009 to contend that the credibility and trustworthiness of defence witnesses has to be guaged on par with that of the prosecution.
Reliance was also placed on behalf of the accused on the verdict of the Hon'ble High Court of Delhi in the case, Sunita Sharma Vs. Sarika Gulati and Another Vs. 139/2007 dt. 623 to contend that the documentary evidence always gets pre- ponderance over oral evidence as it is a well known axiom of law that men may till lies but documents cannot and that the documents on the record establish the innocence of the accused.
Inter alia on behalf of the accused persons 2 and 3 it was submitted that there was nothing on the record to indicate why the Commercial Officer had not been examined and how the telephones had been sanctioned and how the 75 telephones continued to function despite disconnection for non payment, and as to how they had been disconnected and that the best evidence had been withheld by the prosecution i.e. the Commercial Officer who had neither been arrayed as an accused nor as a witness and that in the instant case the testimony of PW14, Shri Prakash Chander Khanna indicated clearly that the re-activation of the telephones Nos. 5767106 and 5766898 which had been disconnected due to non payment was due to corruption of the software in the computer, which could not be attributed to any act of the accused persons.
EXPLANATIONS UNDER SECTION 313 CR.P.C. 1973 OF ACCUSED NOS. 1, 2 & 3.
ACCUSED NO. 1.
The accused No. 1 Ms. Jyoti whilst pleading innocence though her statement under Section 313 of the Cr.P.C. 1973 admitted that Ex. PW 13/A, i.e. D-23 her passport bearing No. W072386 had been renewed in her name as Jyoti Saraf as passport No. B 5082915. This passport shows her to be a resident of House No. 5621 street No. 77, Regar Pura, Karol Bagh, New Delhi and is indicated to have been issued on 05.03.3001, with the original passport having been issued on 25.05.1984. Accused No. 1 further stated through her statement that earlier her father was a tenant in the said property and had subsequently purchased the same and stated that there was a paying guest in the name of Mohd. Sharif residing on the Second Floor of this property and that they i.e. Mr. Shiv Kumar Kohli and his family including the accused No. 1 were residing on the First Floor. Ex. PW 16/1 a production memo dated 30.06.1997 issued by the Food and Supply Office, Delhi which indicated that a ration card Ex. PW27/C was issued indicating residence of Mr. Shiv Kumar Saraf and the accused No. 1 his daughter at the residence 5621, Gali No. 77, Regar Pura, Karol Bagh, New Delhi was admitted by the accused No. 1.
The accused No. 1 however categorically denied that signatures at Q- 15 on Ex. PW 4/D2 also exhibited as Ex. PW 17/A were hers, signed as Sunita on Ex. PW 4/DZ, i.e. the application to the Divisional Engineer Mahanagar Telphone 76 Nigam Limited, Karol Bagh, New Delhi seeking restoration of ISTD on her telephone No. 5766898 bore her signatures i.e. the signatures of accused No. 1 as Sunita Sharma thereon with the address 5621 Gali No. 77, Regar Pura, Karol Bagh. She further categorically denied that she had got the said document attested by Mr. R.K. Dotania , Deputy Manager, DSIDC New Delhi at Ex. PW 17/A on Ex. PW 4/DZ and denied that she had taken the documents of identification i.e. ration card and higher secondary certificate with her. The accused No. 1 further categorically denied that she had got the two telephone connections in the name of the two subscribers Sunita Sharma and Surender Kumar installed by PW 21 Shri Sant Ram at 5621/77 Regar Pura, Karol Bagh, New Delhi, i.e. her residence and also denied that she was the subscriber of one of the telephones. Inter alia accused No. 1 stated that she was not aware that as per the history sheets Ex. PW 9/DA and Ex. PW 9/DB the two telephone No. 5767108 and 5767898 had been disconnected on account of non payment of charges and were never reactivated after payment and also denied that she had any knowledge of the aspect that during the test check at 5621/77, Regar Pura, Karol Bagh, New Delhi where she was residing, as per the record, telephones No. 5666898 was found to be terminated on MDF pair 5-01-07/67 and that on physical tracing it was found connected on MDF pair 9/7/30 with telephone No. 5767106 correctly terminated on MDF pair No. 9/7/47. She further denied knowledge of the entire MTNL Record and also of the unpaid telephone bills qua telephone No. 5767898 as Ex. PW 27/1 - 2, Ex. PW 27/1-3 and qua telephone No. 5767106 as being Ex. PW 27/1-4, Ex. PW 27/1-5 and PW 27/1-6. Accused No. 1 further denied that she was identified by PW 28 Shri Pancham Lal Sub Inspector MTNL Karol Bagh Exchange, as being the person who had asked PW 28 Pancham Lal and his associates Shri Lal Singh, Shri Brij Lal and Shri Sant Ram when they reached her residence at 5621/77 Regar Pura, Karol Bagh for installation of OB No. 115735440 and denied having asked not to make any inquiries about Sunita Sharma, about whom inquiries were being made by them and denied further that she asked them to install the phone as directed by Manohar Sigh JTO and as a consequence thereof the OB Ex. PW 4/6 was installed and also denied that the telephone instrument of the make Panasonic had been provided by her. She further stated that she was not present at the house and 77 that she was in Bombay and that she is not Sunita Sharma. She also denied that she had told Mr. Pancham Lal that she was Sunita Sharma at the time of installation of the OB No., she also denied that a day before the OB in the name of Sunita Sharma had been installed at 5621 Gali No. 77, Regar Pura, Karol Bagh, New Delhi the OB in the name of Surender Kumar had been installed at the said premises and denied that she had told Mr. Pancham Lal to install the line on the instructions given by the accused No. 2 Mr. Manohar Singh JTO when she accused No. 1 had asked the accused No. 1, Mr. Pancham Lal to install the telephone and not to make any inquiries about Shri Surender Kumar which were being made and stated that she was at Bombay. She also denied that she had asked Mr. Pancham Lal PW 28 to install the phone connection properly at her residence and whether the co-accused No. 3, Om Prakash instructed PW 28 Pancham Lal that the OB in the name of Surender Kumar was to be installed in the premises where the OB had been installed in the name of Sunita Sharma. In relation to the joint surprise check memo Ex. PW 2/A stated to have been prepared on 15.03.1996 on the joint inspection conducted by the team of the Vigilance Department of the MTNL, the CBI and two independent witnesses at 5621/77, Regar Pura, Karol Bagh, New Delhi at the premises of Mr. Shiv Kumar Kohli where two telephone lines were stated to have been found extended on a Panasonic two line instrument on the second floor in one bed room of that house with the STD facility available on telephone No. 5767106 and ISD facility on telephone No. 5766898 which were connections found to be in the name of Sunita and Surender who were not residing there, it was stated by the accused No. 1 that there was a raid conducted by the CBI on 15.03.1996 at the said residence and that she and her family were not aware that these two telephone numbers 5767106 and 5766898 were installed in the said premises as there was a person named Mohd. Sharif a paying guest residing at the second floor who had got these telephones installed and that she learnt of the installation of these phones after the raid. She further that she was not aware of the phones being misused and was not aware of any wrong termination of the MDF pairs of these telephones and that she was also not aware whether these telephone connections were being used for making STD/ISD calls and further stated that they had not been called at the time of the raid which was conducted on the second floor and stated that she and her 78 family resided at the first floor and that the CBI personnel had misbehaved with her parents and had beaten them. She also denied that Shri Sant Ram, Regular Mazdoor at the Regar Pura, Karol Bagh Exchange, New Delhi during the period 1995 to 1996 used to go to the residence where she resided to rectify the fault in the two telephone connections installed there by him in the names of the two subscribers Sunita Sharma and Surender Kumar and denied that whenever he went for the rectification of the faults and he found her i.e. accused No. 1 and never saw Sunita and Surender Kumar in the said premises. She stated that she was not aware of the OB in the name of Surender Kumar being connected with the same telephone instrument of the make Panasonic in which the earlier line in the name of Sunita Sharma was connected. She further stated that she was innocent and had been falsely implicated in the case, that she was not Sunita, and she did not know any staff of the MTNL and that she had learnt of the accused No. 2 and 3 only in the Court during the trial of the case. She further stated that she had never gone to the MTNL nor had she ever applied to the MTNL for any connection in the name of Sunita and that she did not know Mr. Rajender Dotania though he lived in the same lane where she lives, but that she had never seen him nor she had ever got any documents attested by him.
ACCUSED NO. 2:
The Accused No. 2 Manohar Singh admitted that he was the JTO of the Karol Bagh Exchange MTNL during the year 1995 - 96 and stated that he was so posted till 07.10.1995 and thereafter was posted till 29.03.1996 at Janakpuri. In his statement under Section 313 of the Cr.P.C. he stated that he was unaware of any joint surprise check having been conducted on 15.03.1996 at the premises in question and denied any knowledge of any wrong termination of the MDF pair in relation to the telephone No. 5766898 and stated that he was posted at Janakpuri at that time and denied any knowledge of the telephone Nos. 5767106 and 5766898 having been installed in the premises in question having been made use for making use of STD/ISD calls. He stated further that he was not aware of any Panasonic make two line instrument i.e. Ex. P-1 on which the two telephone No. 5767106 and 5766898 were found extended and in working condition and installed at the second floor bed room of the premises 2621/77, Regar Puri, 79 Karol Bagh, New Delhi on the date of the surprise check conducted there on 15.03.1996 when the STD and ISD facilities with conference facility was found to be in existence and denied any knowledge of the verification conducted indicating that these telephones had been installed in fake names with the total outstanding billing liability of Rs. 28 lacs.
Accused No. 2 however admitted that Ex. PW 6/A the jumper letter No. 5972 dated 28.09.1995 Ex. PW 6/9 i.e. D-18 had been issued by him as the JTO. The accused No. 2 however stated that the issuance of this jumper letter was his duty and it had been correctly issued by him but denied that he had conducted any verification of the address or had taken Annexure A from the subscriber and stated that physical verification of the address of the subscriber was not part of his duty and that he had not taken Annexure A from the subscriber.
The accused No. 2 admitted that Mr. Sant Ram, Regular Mazdoor in the Regar Pura, Karol Bagh Exchange, New Delhi was working under him but denied that it was the duty of the JTO to verify the address of the subscriber when a new telephone is to be installed and stated that rather the witnesses who had so testified were not aware of the existing rules at the relevant time and stated that the relevant rules prevented any queries being made from the subscriber and stated that no physical verification could be done. He further stated that the relevant circulars in operation at that time had already been exhibited. To the query put to him in his examination under Section 313 of the Cr.P.C. that the two telephone connections in the name of the two subscribers Sunita Sharma and Surender Kumar were installed by PW 21 Shri Sant Ram on his asking i.e. asking of accused No. 2 Manohar Singh at 5621/77, Regar Pura, Karol Bagh and that the accused No. 1 was the subscriber, it was stated by this witness that the execution of the work in accordance with the rules and regulations was his duty and stated that only the field work was to be done by the JTO, in accordance and for compliance of directions of superior Officers. He denied that he had given any directions to Sant Ram and stated that the Regular Mazdoor worked under the Phone Inspector and the Phone Inspector worked under the JTO. Accused No. 2 Manohar Singh admitted that he had given instructions to the Phone Inspector to give directions to the Regular Mazdoor for installation of the two telephone connections in the name of the subscribers Sunita Sharma and Surender Kumar 80 at 5621/77, Regar Puri, Karol Bagh, New Delhi but stated that he did so on the orders of the Senior Officers i.e. the Commercial Officer Mr. A.K. Malik. Accused No. 2 admitted that in the year 1995-96 a Telephone connection issued by the MTNL meant for personal use could not be used as a public call office but stated that he was not aware whether it could not be used for commercial use. The accused No. 2 further admitted that Shri Sant Ram Regular Mazdoor at the Regar Pura, Karol Bagh Exchange was working under him.
As regards the procedure of installation of a new connection on the arrival of the turn of the subscriber, it was stated by the accused No. 2 that in the General Manager Cell there is a Commercial Officer who registers and sanctions the new connections and after seeing the relevant papers, the Commercial Officer fixes the category out of 5 categories. He further explained that the categories are General, OYT General, Special, OYT Special, Tatkal and that thereafter the Commercial Officer issues the OB (Order Book) and sends the same to the Tele Printer Cell of each division and simultaneously posts an intimation letter to the subscriber along with Annexures A, B, C and thereby the Commercial Officers informs the subscriber of the sanction of the telephone connections and asks the subscriber to submit the filled in Annexures A, B, C to the Divisional Office or SD Office or to the Field Staff who come for the wiring. He further stated that the Tele Printer Cell makes an entry, level wise in the register and that there are three registers i.e. of level 1, 2 and level 7. He further stated that the Tele Printer Cell then sends the Order Book to the Sub Divisional Officer who marks the works execution to the JTO area wise. He further stated that the JTO makes an entry in the register and instructs the Phone Inspector and in the event of the Phone Inspector not being available, the Sub Inspector, to find out the feasibility of the installation of the telephone at the spot. As per the accused No. 2, the Sub Inspector along with the labour, i.e. 2/3 labourers goes to the spot and finds out the extent of the wire required and whether the telephone connections can be installed. He further stated that the Sub Inspector/Phone Inspector then gives the report to the JTO of the extent of wires required and the feasibility of the installation and the JTO then issues the slip in duplicate to the store for collection of the wire by the order of the SDO and the JTO also issues a slip in duplicate for the issuance of the telephone instrument to the repair shop of the MTNL.81
He further stated that the original OB is called the 'red copy' and the carbon copy is called the 'black copy'. He further stated that the Sub Inspector takes the 'black copy' to the repair shop for issuance of the telephone instrument and the In -charge at the repair shop affixes a stamp on the 'black copy' of the issuance of the telephone instrument. He further stated that the SI or Phone Inspector then returns the black copy to the JTO for issuance of the jumper letter and this is for proof of issuance of the telephone instrument and this is to avoid giving a rebate of Rs. 300 to the subscriber. He further stated that the jumper letter is prepared by the JTO or by the Phone Inspector on the basis of the red coy and the black copy and after completion of the wiring and installation of the phone instrument, the SI gives the report of the completion of the work to the PI or the JTO and the JTO then signs the jumper letter and sends it to the Tele Printer Cell. He further stated that the person at the Tele Printer Cell makes an entry in his record where there was a previous entry that the work had been completed and the In -charge of the Tele Printer Cell sends the jumper letter to the SDE (Record Section) and the Record Room Section after allotting the telephone number on the jumper letter, sends instructions to the Divisional Engineer, Switch Room for activation and after report of the activation of the number, the SDE record sends information to the MDF for jumpering, that the NE (Number Extension) from the switch room to the MDF and the cable from the outdoor also go to the MDF and the connection between the NE from the switch room and the cable from the outdoor is known as jumpering and that the telephone starts working. The accused No. 2 further stated that the SDE Record confirms from the subscriber on dialing when the telephones were working and informs the subscriber of the telephone No. and verification in whose name the telephone has been installed. Accused No. 2 further stated that there is a word 'ROTSS' which means 'Right On Test Subscriber Satisfied' and thereafter the jumper letter is 'done'. He stated whether that the SDE record sends the jumper letter to the Commercial Officer working who verifies the signatures on the Annexure A, B, C attached with the jumper letter with the original file of the subscriber and that if he finds any discrepancy he writes to the SDE or can verify himself. The accused No. 2 further stated that the Commercial Officer then writes to the Accounts Section that the telephone has been started and its billing be commenced. To the question 82 put to the accused No. 2 in his statement under Section 313 of the Cr.P.C, that the OB No. 35571006291 in the name of Shri Surender Kumar was installed at the address 5621/77 Regar Pura, Karol Bagh as per Ex. PW 24/DB in the file Ex. PW 4/C on his instructions, i.e. the instructions of the JTO where Mr. Surender Kumar was not there and the accused No. 1 Jyoti and her mother were present and where accused No. 1 asked PW 28 Mr. Pancham Lal Sub Inspector and his associates not to make any inquiries about Surender Kumar and to install the line as per instructions given by Shri Manohar Singh i.e. the accused No. 2 which were carried out by PW 28 who connected the telephone with the telephone instrument brought by him, it was stated by the witness that he did not know about Mr. Pancham Lal but stated that no such report had been given to him by Pancham Lal or by any other person. The accused No. 2 further categorically denied that when PW 28 Mr. Pancham Lal Sub Inspector of the MTNL informed him i.e. accused No. 2 after returning to the Exchange that he had not met the party against whose name the OB had been issued, the accused No. 2 had told Pancham Lal that he i.e. PW 28 Pancham Lal had nothing to do with the party being present or not. The accused No. 2 further denied that the accused No. 3 Om Prakash, Telephone Operator handed over the jumper letter in respect of telephone No. 5767106 personally to Shri Rakesh Kumar then Operator in the Karol Bagh in November 1995 and stated that it is the duty of the JTO who sends the jumper letter to the Tele Printer Cell and thereafter there is no responsibility of the JTO. The accused No. 2 in relation to the query that the history sheets Ex. PW 9/DA and Ex. PW 9/DB indicated that the two telephone Nos. 5766898 and 5766898 disconnected on account of non payment, of charges were never reactivated after payment stated that this was not within his area of work as he was JTO (Outdoor) and this was the duty of the Indoor MDF division. The accused No. 2 admitted that as per Ex. PW 24/1 the circular No. 6/1/94 PHB dated 29.04.1994, a telephone connection meant for personal use could be connected with an instrument meant for two lines but it was not permissible for connections meant for PCO's and commercial use as per clause 5 thereof. The accused No. 2 however denied that there are any instructions pertaining to a telephone number, received from the Fault Repair Section by the JTO which are carried out with a password known only to the JTO who gives the command pertaining to the 83 command of disconnection or reconnection. He admitted further that if any subscriber uses his personal telephone connection installed with the two line instrument for conferencing facility for commercial use it was against the rules and no complaint for excess billing could be entertained. The accused No. 2 admitted also that he had asked Pancham Lal Sub Inspector MTNL Karol Bagh Exchange to execute the OB Ex. PW 4/B, by the order of his Seniors but denied that he had asked Pancham Lal and his associates not to make any inquiry about Sunita Sharma and to install the Phone as directed by him and that thus the OB Ex. PW 4/B was installed and that thus the telephone instrument of the make Panasonic had been provided by Ms. Jyoti accused No. 1. Accused No. 2 also denied that one day before OB Ex. PW 4/B in the name of Sunita had been installed at the premises in question, the OB in the name of Surender Kumar had been installed in the same premises and that the same had been done by Shri Pancham Lal on his directions and that he had asked Pancham Lal not to make any inquiries about Shri Surender Kumar.
The accused No. 2 further stated that he was not aware whether the accused No. 3 Om Prakash, Telephone Operator was present at the residence of the accused No. 1 Jyoti, nor whether when Pancham Lal SI had visited there and that he was not aware whether the accused No. 3 had asked Pancham Lal to install the connection properly and rather stated that there was a distance of about 1 and a half kilometer between his office and the office of Shri Om Prakash accused No. 3 who was in the Indoor Division and he, the accused No. 2, who was in the Outdoor Division. The accused No. 2 further stated that he was the JTO (Outdoor) and had field work duties and on the instructions of his Seniors, up to sending the jumper letters to the Tele Printer Cells as per the existing rules was his duty. He further stated that he was innocent and that in this case the Commercial Officer and the Accounts Officers are involved and he had been made a scapegoat by them to save their skin. He further stated that it was not his duty to verify the genuineness of the subscriber at the time of the installation of the telephone and stated further that this case has not been properly investigated.
ACCUSED NO. 3:
The accused No. 3 Shri Om Prakash in his statement under 84 Section 313 of the Cr.P.C. admitted that he was the Telephone Operator of the Karol Bagh Exchange of the MTNL New Delhi in the year 1995-96 but denied that he had handed over the jumper letter in respect of telephone No. 5767106 personally to Rakesh Kumar, then Operator at the Karol Bagh in November 1995. Accused No. 3 whilst admitting that his handwriting and signatures on Ex. PW 11/S1 to Ex. PW 11/S138 had been taken by the CBI personnel, stated that the handwriting at Q-18 on Ex. PW 27/A was his, but stated that the handwriting at Q-19, Q-20, Q-21, Q-22, Q-23, Q-24, Q-25, Q-27 to Q-28 (D-16) were not his, nor were the signatures on Q-17 on Ex. PW 4/D his. He further stated that anyone could bring an application form to be filled in and as far as he recalled, an old lady had given him a form for filling in and he further stated that he did not know the accused No. 1 and came to know her in the Court only and likewise he did not know accused No. 2 and came to know him only in the Court. He stated further that the JTO sends the jumper letter to the Tele Printer Cell and the rest of the procedure does not concern him, and he has no connection with the same. Accused No. 3 further denied that any instructions pertaining to a telephone number received by the FRS JTO are carried out with the password known only to the JTO who gives the command pertaining to the programme of disconnection or reconnection. The accused No. 3 further categorically denied that he had asked SI Pancham Lal to install the telephone connection at the residence of Ms. Jyoti accused No. 1 properly at 5621, Gali No. 77 Regar Pura, Karol Bagh, New Delhi and also denied that he had instructed SI Pancham Lal that the OB in the name of Surender Kumar was to be installed in the premises where the earlier line in the name of Sunita Sharma had been connected. The accused No. 3 also denied that he had instructed SI Pancham Lal to install the connection properly at the residence of Ms. Jyoti at 5621, Gali No. 77, Regar Pura, Karol Bagh and stated that he was not present there. He further stated that he was not aware that the accused No. 1 Jyoti had informed Pancham Lal SI that she was Sunita Sharma at the time of installation of the OB No. and stated that he did not know Jyoti. He further stated that it was a false case and there was no role and responsibility of his.
ANALYSIS 85 On a consideration of the entire available record and rival pleas addressed on behalf of either side, the Court is of the considered view that as regards the accused No. 1 Ms. Jyoti, the testimonies of the prosecution witnesses do not suffice to inspire confidence in relation to the allegations levelled against the said accused of having impersonated as an applicant Sunita in order to get a fake telephone number installed in the said name at her residence at No. 5621, Gali No. 77, Regar Pura, Karol Bagh, New Delhi, nor in relation to the allegations levelled against her of having got a telephone connection installed in the name of an inexistent person Surender Kumar at the very same residence, nor in relation to the allegations levelled against her of the alleged user of forged documents with intent to cheat the MTNL and to get installed telephone No. 5767106 with STD facilities and No. 5766898 with ISD facilities and of having thereby caused wrongful pecuniary loss to the MTNL to the tune of Rs. 28,05,213/- in connivance with the co-accused public servant Nos. 2 and 3 Manohar Lal and Om Prakash JTO and Telephone Operator respectively.
This is so in as much as, though the testimonies of PW 2 Shri M.L. Kochar, then working as Assistant Vigilance Officer, MTNL, New Delhi, PW 4 Shri A.P.S. Sachdeva, then AVO, Vigilance, MTNL, PW 5 Shri Bishan Singh, then SDE (record), Karol Bagh Telephone Exchange, PW 7 H.C. Bisht, then Deputy SP CBI, PW 8 Smt. Krishna Aggarwal, daughter-in-law of the stated landlord Shri Kirorimal Gupta, PW 9 Shri Naresh Kumar Lal, (JTO) (MDF) in the year 1996 at the Karol Bagh Telephone Exchange, New Delhi, PW 10 Shri Surender Kumar Goel, then JTO Vigilance, MTNL, PW 13 Ms. Shakuntala Diwan, then Personnel in the Passport office, 1994, PW 21 Shri Sant Ram, a Regular Mazdoor of the Regar Pura Exchange, Karol Bagh, New Delhi, PW 23 Shri R.S. Yadav, then JTO (Vigilance) established that these above mentioned telephone connections were found to be in a working condition at the time of the joint search conducted on 15.03.1996 by the CBI Personnel and MTNL Personnel, on the basis of the complaint made by PW 7 Shri H.C. Bisht, then CBI, Anti Corruption Branch, New Delhi and also established that these two telephone lines were in a working condition on the date 15.03.1996 at the house No. 5621/77, Regarpura Karol Bagh, New Delhi in which the accused No. 1 was residing with her parents, her father 86 being Shri Shiv Kumar Kohli, these testimonies do not bring forth that the Panasonic two line conferencing instrument for commercial use had been got installed by accused No. 1 and do not dispel the reasonable doubt that they were got installed by the paying guest residing on the 2nd Floor of the said premises, where the two lines conferencing instrument the Panasonic Ex. P1 was found installed.
This is so in as much as the presence of another person residing in the building bearing No. 5621, Gali No. 77, Regar Pura, Karol Bagh, New Delhi, cannot be overlooked as, PW 2 Mr. M.L. Kochar, Assistant Vigilance Officer, MTNL and the member of the team who conducted a surprise check at the premises in question on 15.03.1996 stated that he did not remember whether Mr. Shiv Kumar, the owner of the house had been called at the time of the surprise check and stated that he did not recall whether the room in question where the two telephones were found, were in possession of the Mohd. Sharif, a paying guest. He had further stated that he did not remember whether the person in whose names the telephones were installed were present or not.
The testimony of PW 3 Shri A.P.S. Sachdeva, a member of a surprise check team from the MTNL on the date 15.03.1996 and who was then posted as AVO (Vigilance) through cross examination states: -
"I do not remember if we met one Mohd. Sharif at the premises in question. It is correct that when Shiv Kumar was called from the shop, he told at the first instance to the CBI that the room in question is occupied by his paying guest Mohd. Sharif. I do not remember if any girl by the name of Sunita met us at the time of raid. It is correct that in my presence the girl who was found there was directed to report in CBI office the next morning."
This witness has also admitted that he had not stated in his statement Mark PW 4/A, that Shri Shiv Kumar Kohli had disclosed at the time of raid, that the room was in possession of Mohd. Sharif as his paying guest. Significantly, this witness on being cross examined on behalf of accused No. 1 stated that he was not questioned by the CBI about the version of Shiv Kumar with regard to Mohd. Sharif.
The testimony of PW 8 Smt. Krishna Aggarwal daughter-in-law of Shri Kirorilal Gupta, the stated owner of house No. 5621, Gali No. 77, Karol Bagh, New Delhi 87 in cross examination stated that Mr. Shiv Kumar Kohli, father of accused No. 1 was a tenant of her father-in-law who expired in 1970 and she PW 8 had never received or collected rent from Mr. Kohli residing in the upper portion of that house and she had stated that the ground floor of that house had fallen to the share of her husband and the first floor had fallen to the share of her husband's brother who died in 1988 whose wife Smt. Raj Kumari Gupta died in year 1989, whose signatures however, she PW 8 could not recognize and that she was not aware whether Raj Kumari Gupta had sold the first floor of the property to Smt. Bimla, W/o Shiv Kumar or that she had executed an agreement to sell and power of attorney dated 23.10.1991 in favour of Smt. Bimla W/o Shri Shiv Kumar Kohli, and that Shri Shiv Kumar Kohli was never her tenant and that she never had any concern with the visitors of Shiv Kumar Kohli and that she had never tried to find out as to who else apart from Shiv Kumar Kohli and his family were residing at the first floor and that she had never told any CBI official nor had any CBI official ever asked her who else resides in the portion of Shiv Kumar Kohli except his family and stated that she did not know whether Mohd. Sharif and Sunita were residing with Shiv Kumar Kohli and his family. Significantly this witness stated that there was no 2nd Floor in the building, which is contrary to the prosecution version, in as much as the testimony of PW 2 Shri M.L. Kochar, brings forth that during the surprise check conducted on 15.03.1996, when they went to the premises and on checking from the distribution point as to where the witness were going, they found both the telepone lines extended on as Panasonic two line instrument found on the second floor in a bedroom. It is apparent thus that the testimony of PW 8 Smt. Krishana Aggarwal is not current in state of time, as on the date 15.03.1996, and does not and the prosecution in any manner. The testimonies of PW 4 Shri A.P.S. Sachdeva and PW 7 Shri H.C. Bisht and Ex PW 2/A, the joint surprise check memo dated 15.03.1996 signed by PW 23 Shri R.S. Yadav, Member of the Joint Surprise check team also bring forth the existence of the second floor about which PW 8 Smt. Krishna Aggarwal has no knowledge.
The statement of PW 17 Sri Rajinder Dotania, a public servant who testified to having attested the signatures of accused No. 1 Jyoti @ Sweety on Ex. PW 4/DZ on 28.08.1995 vide his endorsement at Ex. PW 17/A under his own signatures and 88 office stamp is wholly unreliable as this witness is stated to have identified the signatures on Ex. PW 4/DZ as being those of accused No. 1 named Jyoti @ Sweety whereas the signatures on Ex. PW 4/DZ are in the name of Sunita. The factum that this witness during cross examination on behalf of the accused stated that no statement of his was recorded by the CBI and who subsequently stated that he did not recall whether he had made a statement to the CBI, coupled with the factum that he stated that whenever the accused No. 1, who he stated was known to him by the name of Sweety, used to come to him for attestation along with original documents and copies thereof, he used to compare the copies along with their originals, but never noticed the name Sweety or Sunita, coupled with the factum that he could not affirm that the name of accused Sweety was Jyoti and stated that he learnt of the name of accused No. 1 as being Jyoti after the present case.
The witness Mrs. Phoolwati, PW 19, resident of 6046, Block No. 2, Dev Nagar, Karol Bagh, New Delhi stated that Jyoti accused No. 1 was also known as Sweety and used to live near her earlier house at Regar Pura, but she stated she could not state if any paying guest was living in the house of the accused No. 1 Jyoti.
The testimony of PW 27 Mr. Anil Kumar Singh, the then Inspector of the CBI who conducted the investigation from 06.02.1997 till institution of the charge sheet, through examination in chief vide Ex. PW 27/D and cross examination conducted on behalf of the accused persons, brings forth categorically that he had obtained the specimen handwriting and signatures of accused No. 1, of Mr. Shiv Kumar i.e. father of accused No. 1 and Om Prakash accused No. 3 and of MAZHAR ISLAM, but the reasons for taking the specimen handwriting and signatures of Mazhar Islam were stated by PW 27 only in reply to a specific Court query when he stated that Mazhar Islam was a friend of accused No. 1 Ms. Jyoti and he PW 27 had taken the specimen signatures and sent it to the CFSL but there was no opinion received to the specific Court query to the Investigating Officer whether there was any Mohd. Sharif found during the course of Investigation. Furthermore, no explanation about Mazhar Islam has also been given by the prosecution apart from a bald statement by PW 27 that he was learnt to be a friend of the accused No. 1, Jyoti.
89Further more the testimony of this witness bringsforth that the CFSL result in relation to the handwriting and signatures of accused No. 1 did not support the prosecution version even remotely, this is so in as much as the testimony PW 11 Shri N.K. Aggarwal, Sr. Scientific Officer who testified to Ex. PW 11/A being his report categorically stated that the questioned writing/signatures marked Q17 to Q28 i.e. Ex. PW 4/D Colly had been compared by him and found to be of the same person who had written S38 (Ex. PW 11/S31 to Ex. PW 11/S38) and that he could not give any opinion on the rest of the questioned writings/signatures in the absence of any proper and sufficient comparable material.
Significantly, vide Ex. PW 27/D, the CBI had sought an opinion from the CFSL whether Q1 to Q28 had been written and signed by the persons whose specimen writings were marked as S1 to S38, S39 to S76, S77 to S99 and S100 to S114, with document at Serial No. 4 in Annexure A attached to Ex. PW 27/D being the application addressed to the Divisional Engineer Karol Bagh written by 'Sunita' for restoration of ISTD on Telephone No. 5766898 containing Q14 and Q15, coupled with the factum that as per Annexure B attached to Ex. PW 27/D the specimen handwritings sent by the CBI to the CFSL for comparison were as follows:
'List of specimen handwriting:
(1) Specimen handwriting and signatures of Shri Om Prakash S/o Nanawa Ram r/o TC-5/6, New Moti Nagar, New Delhi encircled in blue pencil and Marked as S1 to S38.
(2) Specimen handwriting and signatures of M/s. Jyoti D/o Shri Shiv Kumar r/o 5621/77, Reigerpura, Karol Bagh, New Delhi encircled in blue pencil and marked as S-39 to S-76.
(3) Specimen handwriting and signatures of Shri Mazhar Islam S/o Shri Anwarul Islam, R/o H.No. 10/878, Shahabehlol street, PS Mandi Shaharnpur (U.P.) encirled in blue pencil and marked as S-77 to S-99.
(4) Specimen handwriting and signatures of Shri Shiv Kumar, S/o Late Shri ThakurDass, R/o 5621/77, Raigerapura, Karol Bagh, New Delhi encircled in blue pencil and marked as S-100 to S-114.90
Furthermore, Annexure 'A' attached to Ex. PW 27/D is as follows:
Annexure 'A' "List of Documents in RC 20(A)/96-DLI.
(1) Duplicate application |Form No. 973767 dated 19.12.94 in the name of Sunita Sharma R/o House No. 5621, Gali No. 77, Raigerapura, Karol Bagh, New Delhi containing the questioned handwritings marked Q.1 to Q.3 encircled in red pencil. (2) MTNL Form No. 973767 specimen signature card in r/o Application No. 973767 in the name of Sunita Sharma containing questioned handwriting Marked Q.4 to Q.11 encircled in red pencil.
(3) Document Annexure 'A' regarding Statement for bonefide verification for provision of new telephone if the applicant is a firm etc. in the name of Sunita Sharma containing Q.12 & Q.13 encircled in red pencil.
(4) One application addressed to Divl. Engineer MTNL Karol Bagh written by Sunita for restoration of ISTD on Telephone No. 5766898 containing Q. 14 & Q.15 encirled in red pencil.
(5) Statement for bonafide verification of provision for a new telephone if the applicant is an individual Annexure 'A' dated 27.3.95 in the name of Surinder Kumar containing the question handwriting and signatures marked Q.16 & Q.17 encircled in red pencil.
(6) Duplicate application form No. 876588 in the name of Surinder Kumar R/o 5621/77 Raigerapura, Karol Bagh New Delhi-5 for the allotment of telephone containing questioned handwriting Marked Q.18 to Q.20 encircled in red pencil. (7) Duplicate application form No. 876588 in the name of Surinder Kumar R/o 5621/77, Raigerapura, Karol Bagh, New Delhi-5 for the allotment of telephone containing questioned handwriting Marked Q.18 to Q.20 encircled in red pencil. (8) One form No. 876588 of MTNL specimen signature sheet for application form No. 876588 in the name of Surinder Kumar containing specimen handwriting form Q.21 to Q.28 encircled in red pencil."
It is apparent thus that the testimony of the handwriting expert Ex. PW 11/A sets at naught the entire prosecution version against the accused No. 1 Jyoti.
91ACCUSED NO. 2:
As regards the accused No. 2 Shri Manohar Singh S/o Shri Thakur Das, the then JTO of the MTNL New Delhi, Karol Bagh Exchange, New Delhi, the available record brings forth as follows: -
• through the testimony of PW 1 Shri A.K. Kalia, the then Deputy General Manager (Administration) MTNL that in the case of a sanction of a new connection the service lines are installed by the staff of the JTO (Outdoor and that it is after installation of the service lines, that the jumper letter is issued by the JTO (Outdoor) and disconnection is activated by the JTO (Indoor) or any person authorized inside the exchange;
• The testimony of PW 2 Mr. M.L. Kochar then Assistant Vigilance Officer MTNL, states that it is the duty of the JTO (Outdoor) to check the residential proof of a subscriber and his identity and other requirements, and not the duty of the linesman who goes for the installation to check the residential proof and identity of the subscriber, and that it is the duty of the Commercial Officer to check on the relevant documents of the subscriber before issuing the OB, whereafter it is executed by the outdoor staff i.e. SDO/JTO, and that after installation of the telephone, the JTO (Outdoor) get some papers signed from the subscriber and sends the same to the Finance and Commercial Section and after receipt of the Annexures from the JTO (Outdoor), the Commercial Officer reconfirms the documents i.e. Annexures and in case of doubt, the Commercial Officer reconfirms and rechecks and satisfies himself and if he is not satisfied himself, he orders the disconnection of the telephones;
• the testimony of PW 5 Shri Bishan Singh then SDE (Record) Karol Bagh, Telephone Exchange brings forth that whenever a new telephone connection is installed, it is approved by the Commercial Officer and the OB No. is issued which is given to the JTO (Outdoor) for installation of telephones and the Annexures which remain with the outdoor staff are signed by the subscriber and returned to the JTO, whereafter the JTO hands over the Annexures with the 92 jumper letter to the Record Section for opening of the number and the Records Section sends the Annexures to the commercial officer after opening of the number.
• the testimony of PW 20 Shri Shashi Kant Dabral, then Engineering Officer to the General Manager (West-1) MTNL New Delhi brings forth that for installation of a new telephone connection, after issuance, the relevant Order Book used to be sent to the TP Cell i.e. Tele Printer Cell and from there it was so marked to the Junior Telecom Officers then known as Junior Engineers who useds to note down the complete details in the OB Register and thereafter the work used to be allotted by the Junior Telecom Officers to the line staff after verification of the address Annexure A used to be obtained from the subscriber, whereafter the Junior Telecom Officer used to issue the jumper letter which was sent to the TP Cell/Coordination office and from there the jumper letter was straightway sent to the FRS (Records). It is also stated by this witness that the Order book number is issued by the Commercial Officer and copies thereof are sent to the TP Cell, Subscriber and SDE (Coordination) and the new telephone connection is sanctioned by the Commercial Officer and copies thereof are sent to the TP Cell, Subscriber and SDE (Coordination) and that along with copy of the order issued by the Commercial Officer, a blank Annexure A is also sent to the subscriber and the subscriber after receipt of the blank Annexure A fills up the particulars like name, address and either deposits the same in the telephone exchange or hands over the same to the head of the line party and that the Junior Telecom Officer in the case of sanction of a new telephone connection issues the cable wire and the instrument to the line staff who installs / lays the same in the premises of the subscriber and in case the subscriber hands over the duly filled up Annexure A to the Junior Telecom Officer (Junior Engineer), he in turn deposits the same in the telephone exchange and after activation of the new telephone connection, the Commercial Officer verifies / tallies the name, address etc. of the subscriber and the Junior Telecom Officer prepares the jumper letter on the basis of the OB and Annexure A;93
• the testimony of PW 21 Shri Sant Ram then Regular Mazdoor in the MTNL is to the effect that the job of the JTO and Telephone Inspector is to verify whether the subscriber at whose place a telephone has to be installed, was residing/working there or not and it is also the duty of the JTO and Telephone Inspector to verify the address of the subscriber;
• the testimony of PW 24 Shri Narender Kumar Khanna SDO and Commercial Officer of the MTNL brings forth as stated by him that on the arrival of the turn of an applicant for a telephone connection, the Tele Printer Cell situated at the head office of the MTNL used to issue the order book (OB) for installation of a new telephone connection and the said order book used to be transmitted through the Tele Printer Cell from the Head Office to the Tele Printer Cell of the concerned area, and thereafter, the hard copy of the order book used to be handed over to the JTO for execution of the work and the JTO used to carry Annexure A, B and E used to obtain signatures of the subscribers thereon, wherein a certificate used to be there to the effect "the connection vide registration number at the address was for his bonafide use an that he has been residing at the said address". According to this witness, thereafter, the JTO used to instruct the installation team comprising of the lineman and field staff workers to install the telephone connection at the address as per the OB and Annexures and that the installation party after installation of the connection including the wiring and testing up to the Exchange used to report back to the JTO concerned as also the details of the pair used/connected up to the Exchange and after receipt of the report about installation of the connection and testing thereof from the installation party, the JTO used to issue a jumper letter to the Record Section and of the concerned exchange and on the basis of this Jumper letter, the Record Section used to issue two instructions, one to the MDF and the other to the Switch In-charge and that the instructions to the MDF In-charge would be for jumpering between the cable side and to the number allotted by the Record Section. The witness further stated that the instructions to the Switch Room along with the telephone number, allotted details, to energize the said 94 connection, and the Record Section, thereafter informed the subscriber/customer about the said energization of the instrument and the new telephone number allotted and the record was updated.
The circular No. 2-2/86-PHA dated 19.06.1985 i.e. Ex. PW 24/2 of the MTNL, was testified by the witness to have been signed by him relating to the verification of the bonafides at the time of the installation of the telephone connection, which reads as : -
"No. 2-2/86-PHA, dated 19-6-1995 Subject: - Verification of bona fides at the time of telephone installation. Telecom Reforms Committee has reviewed the instructions regarding verification of bona fides at the time of provision of telephone connection. It has been decided to follow the instructions for verification of bona fides as given below under pressnote. You are kindly requested to issue the pressnote in the local newspaper for the benefit of general public and ensure the implementation of instructions in the field units under your jurisdiction.
PRESSNOTE Verification of bona fides at the time of telephone installation Quote often, telephone subscribers complain that they are unnecessarily harassed at the time of installation of a new telephone connection and shift of a telephone due to the 'bona fides' checks carried out by departmental officials. As per existing instructions on the subject, it is sufficient if, at the time of installation of new telephone sanctioned under Non-OYT-Special, Non-OYT-General, OYT-General and OYT - Special categories, the installation party is handed over a pro forma certificate (to be supplied by the installation party) signed by the subscriber to the effect that he/she is staying at the address and that the telephone connection is for his bona fide use.
In case of telephones sanctioned under Non - OYT-Special category, the existing practice of checking bona fides before installation will continue. The above procedure will apply in shift cases also. Any difficulty faced by the subscriber in such matters may be brought to the notice of GM/TDM/TDE of his area who will take prompt action in the matter."
The Annexure to Ex. PW 24/DA i.e. the circular of the MTNL No. Comml/E&C/Office Cir/89/1 dated 10.02.1989 was admittedly correct as per the said witness and he stated that the Annexures appended to the same were also sent by the Commercial Officer (Registration) to the subscriber along with intimation letter for the purpose of filling up and submission thereof.
• The testimony of PW 28 Shri Pancham Lal then Sub Inspector MTNL Karol Bagh in reply to a specific Court query of the Court as to what was the procedure for installing the telephone connection, states that first of all the OB is received in the concerned telephone exchange from the Headquarters and the OB is assigned to the JTO who visits the premises of the subscriber for 95 inspection and thereafter the OB is given to them i.e. the Sub Inspector for carrying out the installation and the Phone Inspector is also required to visit the premises of the subscriber before the installation, though he stated that there were no written instructions which provided that the JTO or the Phone Inspector were required to visit the premises of the subscriber before installation of the line. This witness has also stated that in a telephone exchange there are two categories of staff i.e. one is the field staff and the other is the office staff and the decision as to where a telephone connection would be installed is taken by the Commercial Officer and that it was correct that from the Commercial Officer, the file is sent to the Divisional Engineer and from the Divisional Engineer to the concerned SDO and that as far as the OB was concerned, there was no role or connection of the JTO, in as much as the OB was issued from the office of the Commercial Officer and finally came down to the SDO office, before it was sent to the JTO before installation. This witness had further stated that a jumper letter is a letter issued for making the telephone line operational and that the jumper letter was written by the JTO to the Assistant Engineer informing about the installation of the telephone lines, which line installed by the field staff.
PW 28 has further testified to the effect that after the installation is made, all the Annexures relating to the installation are not submitted by the field staff to the JTO, but it is the JTO himself who gets the Annexures filled from the subscribers but that there is no rule which provides that the JTO would himself visit the premises and get the Annexures filled though he then added that he was not sure about the same. He also admitted that the JTO sends the jumper letter to the Tele Printer Cell from after making entries, it is sent to the SDE (Record). The witness has further stated that for making a telephone line operational the AE (Indoor) issues the order to the DE (Switch Room) and admitted that the JTO (Outdoor) has no connection with the JTO Indoor. This witness has further admitted that the JTO (Outdoor) has no connection with the Accounts Branch and that the job of providing STD or ISD facilities is that of the Divisional Engineer (Switch Room) 96 and not of the JTO (Outdoor) and that there was no direct connection between the JTO (Outdoor) and SDE (Record).
The testimony of DW 1 Shri Nihal Singh Saini, Divisional Engineer, Nangloi, MTNL brings forth as per the testimony dated 26.07.2012 that there is no method of checking of the identity of the applicant as being the same as given by the applicant on the original application, though he accepted that there is a photograph put on the original application and the residence proof is taken with the photograph on the original application for subscribing to a telephone even now. As per the procedure detailed by DW 1, on submission of the residential proof by the subscriber, the Commercial Officer books a telephone as per the category and then issues the OB Order Booking and an intimation letter to the subscriber along with the Annexure and sends two copies of the OB to the Tele Printer Cell where an entry is made of the OB in the register and the Tele Printer Cell sends the OB to the SDO who makes an entry of the OB in his register and sends the same to the Sectional JTO, who also makes an entry of the OB in his register and the Sectional JTO gives the OB to the field line man i.e. to the field staff and the field staff then goes to the subscriber at the spot, collects the Annexure to the intimation letter which had been sent by the Commercial Officer to the subscriber and the field staff gets the Annexure filled from the subscriber.
As per the testimony of this witness, the line staff gives the pair i.e. the cable pair to the Sectional JTO which indicates the feasibility of the installation of the telephone collection at the spot and the JTO on receipt of the pairs from the lines staff issues the jumper letter and the JTO annexes the red copy and black copy of the OB and the Annexure and jumper letter and sends the same to the TP Cell which then makes an entry of the jumper letter in its register and the TP Cell sends the jumper letter to the Assistant Engineer FRS and the personnel at the FRS allots the telephone number against the jumper letter and sends the same to the Switch Room, where after on receipt of the compliance report from the switch room of the connection of the telephone having been started from the switch room, which is received by the FRS and the personnel at the FRS connects the telephone number to the pair given by the lines man and the telephone 97 connection is started and the personnel of the FRS verify whether the telephone connection had been installed at the correct place and to the correct subscriber and after the telephone connection is started, the FRS sends the red copy of the OB to the Accounts Section for billing and sends the black copy and Annexure collected from the subscriber to the Commercial Officer of the area who places the black copy and Annexure on the original file and tallies the signatures of the subscriber on the Annexure and the original file and if the Commercial Officer finds some problem in the signature, he writes to the Divisional Engineer for verification of the bonafides of the subscriber, and if the Commercial Officers finds the signatures of the subscriber on the Annexure and on the initial application tallying, then the telephone continues to operate but if the Divisional Engineer finds any problem in relation to the bonafides of the subscriber, the telephone connection is stopped. It has also been stated by the witness DW 1 that the JTO (Outdoor) issues the jumper letter and thereafter receives the compliance report from the FRS qua the allotment of a particular number against the jumper letter and that this is the only role of the JTO (Outdoor). This witness has further stated that Ex. PW 4/DA dated 20.02.1989 is a departmental circular which is in operation till date and he further stated that the JTO has no connection with the Accounts Section billing and has no role in the activation of STD/ISD.
Ex. PW 4/DA the circular dated 20.02.1989 stated to be in existence till date by DW 1 states interalia as follows: -
"......... At present while intimation letters are being issued by CCS for each OB issued perhaps the Des who are issuing the OBs, are not issuing confirmation letters to the subs for issue of OB. It is desired that in each case where the OB has been issued the subs may be informed and annexure may also be enclosed for the above formalities.
This will eliminate the visiting of the field staff/PI/JTO for bonafide check which consume a lot of time and create certain problems.............................."
The entire available record thus brings forth that the best evidence to be led in this case was in the form of the testimony of the Commercial Officer of the MTNL Delhi who has not been produced by the Investigating Agency, as the testimony of DW 1 presently posted as Divisional Engineer, Nangloi, Delhi of the MTNL brings forth categorically that it is ultimately the Commercial Officer of an area who tallies the signatures of the subscriber on the Annexure and the original application and 98 on production of papers of residential proof by the subscriber issues the Order Booking along with an intimation letter to the subscriber which is filled in by the subscriber qua which DW 1 has categorically testified that there is no mode to vouch for its correctness till date, coupled with the factum that the number is allotted only after the compliance report is received from the FRS by the JTO in relation to jumper letter, coupled with Ex. PW 4/DA the circular dated 20.02.1989 and Ex. PW 24/DA the circular dated 10.02.1989 of the MTNL which brings forth that Annexures A and B were advised to be filled in by the customers at the time of sanction of a new telephone connection, coupled with factum that as per the brief history attached to letter dated 22.07.2002 of the MTNL to the CBI i.e. Ex. PW 15/D it was admitted by the department that the office of the MTNL Delhi had appraised the CBI that physical verification of the subscriber was not required to be done by the field staff responsible for installation of telephones.
As regards the contention raised on behalf of the accused No. 2 that the accused No. 2 had been transferred from the Regar Pura, Karol Bagh to the Janak Puri (Outdoor) Division which he joined on 07.10.1995 and that the telephone No. 5767106 in the name of Surender Kumar was energized on 07.11.1995 and that the telephone in the name of Sunita was energized on 05.10.1995 and that thus the accused No. 2 was practically removed far away from the scene for almost the entire period of the two telephones and had no jurisdiction over the place where the telephone was installed or was yet to be installed, the Court is of the considered view that the same does not aid the accused No. 2 in any manner, as the entire spirit of the Prevention of Corruption Act, 1988 through Section 7 and Section 13 thereof brings forth that even where the public servant induces a person erroneously to believe that he can influence another public servant or get done any official function himself or through any other public servant subordinate to him or from any person whom he knows to be interested in or related to the person so concerned, to commit an act qua any proceeding or business to be transacted by any other public servant, commits 'criminal misconduct', and thus merely because the accused No. 2 on the date 07.11.1995, i.e. the date of energization of telephone No. 5767106 was not posted at the Karol Bagh MTNL Exchange as already observed herein above does not aid the accused No. 2 in any manner.
99The available record brings forth through the testimony of the prosecution witnesses and the defence witnesses produced that the investigation in this case as brought forth through the testimony of PW 27 Inspector Anil Kumar Singh of the ACB CBI, indicated categorically that the Investigating Officer has been unable to deny that he had not perused the Commercial guidelines of the MTNL during the investigation of this case and has admitted that it is the Commercial Officer who sanctions the installation of the telephone connection and sends the OB book to his Junior employee but he stated that he did not know as to what is an OB book. The Investigating Officer has further stated that he is not aware whether he had seen the circular Ex. PW 4/DA during the course of investigation. Though this Investigating Officer has stated that Annexure A is got filled in by the JTO from the subscriber at the time of verification of the genuineness of the address of the subscriber and he stated that though he did not recall whether he saw any circular or written document that the JTO has to get the Annexure A filled in from the subscriber but the same was recorded in the statement under 161 of the Cr.P.C. of a prosecution witness Mr. S.K. Dabral i.e. Ex. PW 27/3, he nevertheless stated that he did not ask the Commercial Officer as to why the registration and sanction for installation of the telephone connection was accorded in this case without any documentary proof of the subscribers' addresses. He further stated that he did not recall whether or not he had examined the Commercial Officer who sanctioned the installation of the telephone connection in this case. This witness significantly in cross examination has further stated that he did not recall whether the Commercial Officer sends the Order Book to the DE in the Tele Printer Cell and stated that Annexure A is taken by the JTO to the address of the subscriber for verification of the genuineness of the address of the subscriber and Annexure A is filled in by the subscriber at the spot. He further stated that he was not aware whether the Annexure A is sent to the subscriber with an intimation letter but admitted that the OB sent by the Commercial Officer to the SDO of the Tele Printer Cell goes to the SDO of the concerned exchange and stated that the SDO then marks the OB to the concerned JTO, that he did not know whether on 100 receipt of the OB, the JTO marks it to the area Inspector who in turn marks it to the area Sub Inspector, and that he also did not know whether the feasibility of the installation was verified by the area Sub Inspector. This witness whilst admitting that the line men and regular mazdoor install the telephone connection further reiterated that the two telephone connections in this case were installed by a line man and two regular mazdoors who stated that in relation to both these telephone connections they had informed the accused No. 2 that the subscribers do not reside at the given addresses and further denied that the JTO does not first go to the spot at the time of filling of Annexure A for verification of the genuineness of the address of the subscriber. The witness denied that the JTO issues the jumper letter on the basis of Annexures A, B, C brought filled in by the lineman and regular mazdoor from the spot from the subscriber, but stated that he did not recall who makes the jumper letter whether it is the Commercial Officer or the SDE. The witness further admitted during cross examination that the JTO (Outdoor) has no connection with the activation and deactivation of the ISD and STD. Significantly this witness who is the Investigating Officer of the case stated that it was not within his knowledge that the sanction for prosecution of the accused No. 2 had been declined earlier as the accused No. 2 did not have the duty to conduct the verification of the genuineness of the subscriber, and also stated that it was not within his knowledge whether a draft of the CBI had been put before the sanctioning authority for granting sanction for prosecution and denied that he had not investigated the case properly. This witness further denied that he had deliberately not arrayed the Senior Officers as in this case and had made the Junior Officers scapegoats in the matter.
Ex. PW 4/DA, the circular dated 20.02.1989 of the MTNL which was testified by PW 4 to be still in existence clearly brings forth that the field staff/phone Inspector/JTO are not required to visit the premises of the subscriber to conduct the bonafide check, and that the concerned party is to fill in the Annexures sent to them by the Commercial Officers. Ex. PW 24/DA the circular No. Comml/ENO/Office circular 89/1 dated 10.02.1989 indicates that the Annexures A, B, C are sent at the time of 101 installation of the phone with the intimation letter (sanction) sent by the Commercial Officer (Registration) of the headquarters advising the customer to fill the Annexures A and B which are to be collected by the field staff at the time of installation of the phone from the concerned customer which are sent to the Commercial Officer of the Area Manager's Office along with compliance copy of the OB to link up the format i.e. Annexure A in the relevant file. Mark PW 2/DA placed on record is Ex. PW 15/D a letter dated 22.07.2002 of the General Manager Finance Vigilance to the Assistant Director of the MTNL which relates to the representation of the accused No. 2 against his suspension and prosecution, and this document also indicates that the office of the Chief General Manager MTNL Delhi had apprised the CBI that physical verification of the subscriber is not required by the field staff responsible for installation of telephones and it has been further stated therein that the CBI further explained that they had enough evidence against the official and had sought the issuance of the sanction for prosecution against the accused No. 2.
The prosecution version chiefly revolves around the testimony of PW 1 Shri Sant Ram, the Regular Mazdoor of the MTNL and PW 28 then Sub Inspector, Pancham Lal of the MTNL Exchange in the year 1990 of whom PW 28 identified Manohar Singh the Junior Telecom Officer accused No. 2 to be his immediate boss and these two witnesses are stated to have installed the telephone connections in question at the residence of the accused No. 1 Jyoti at the instance of accused No. 2 Manohar Singh. These two witnesses have also identified Jyoti as that Sunita Sharma who claimed the installation of the telephone of one telephone at least at her pointing out. The testimonies of these two witnesses further significantly brings forth that the telephone instrument which was connected by these two witnesses was not taken by them from the MTNL and what was connected was a Panasonic instrument produced by the person named Sunita Sharma i.e. the alleged accused No. 1, though both these witnesses were allegedly aware that the telephone connection was to be got installed allegedly in the name of Sunita Sharma though she did not exist, the person from the MTNL installed the telephone connection on a Panasonic instrument produced by this stated Sunita Sharma in violation of the MTNL rules, 102 as admitted by PW 28 Mr. Pancham Lal the then Sub Inspector of the MTNL Exchange Karol Bagh who stated categorically that it was not appropriate to connect the telephone line with the telephone instrument provided by the subscriber and this witness has also categorically stated that at the time when he had gone to install the telephone lines he had become aware that the telephone which was sought to be installed was improper, but despite the same he made no written complaint in relation to this aspect to his superior officers. Though this witness has categorically denied the suggestion raised on behalf of the accused that he installed the telephone after taking a bribe from the persons present in the premises, the testimony of this witness who admits that he installed the telephone connection in the name of Sunita Sharma to a Panasonic instrument provided by the subscriber in violation of the MTNL rules, becomes unreliable.
Equally important is the aspect, that this very witness on being cross examined by the Public Prosecutor on behalf of the CBI stated that the telephone line in the name of Surender Kumar was also connected with the same telephone instrument of the make Panasonic in which the earlier line in the name of Sunita Sharma was connected, which factor is significant as the telephone connection in the name of Surender Kumar was installed a day after the installation of the telephone connection in the name of Sunita Sharma who despite knowledge that Sunita Sharma did not exist, the witness connected the telephone connection in the name of Surender Kumar to the same Panasonic instrument despite being aware that it was improper to do so. Furthermore significant is the factum, that the witness connected the Panasonic instrument with the connection of the telephone instrument in the name of Surender Kumar with the Panasonic instrument to which the earlier telephone line in the name of Sunita Sharma was connected, despite the fact that he stated that he had carried the telephone instrument with him when he visited the premises in question for installing the line in the name of Surender Kumar. The variant testimony of PW 28 varies at every step, as this witness had also, so testified by him on being cross examined by the Ld. Public Prosecutor, but this very witness on being cross examined on behalf of the accused stated that the connection with the OB issued in the name of Shri Surender Kumar was connected with 103 the telephone instrument of the MTNL which he had carried with him, and thus this testimony which varies at every stage is unreliable and unconvincing. Significantly this witness had also stated in his testimony that when he went to the premises 5621 Gali No. 77, Regar Pura, Karol Bagh for installing the telephone connection in relation to OB No. 115735440 in the name of Sunita Sharma though he and his assistants Shri Lal Singh, Shri Brij Lal and Shri Sant Ram PW 21 did not find Sunita Sharma at the address and found Jyoti i.e. the accused No. 1 and her mother at the said address and on inquiries about Sunita Sharma, the accused No. 1 Jyoti asked them not to make inquiries about Sunita Sharma and asked them to install the phone as directed by accused No. 2, the JTO and she did not inform as to who was Sunita Sharma, but on cross examination by the Public Prosecutor this witness stated that when he visited the premises and met Jyoti i.e. accused No. 1 and made inquiries about Sunita Sharma she informed that she hereself was Sunita Sharma and that he should focus on installation the connection.
Equally significant is the factum, that this witness PW 28 stated that the decision where a telephone connection is to be installed is taken by a Commercial Officer and from a Commercial Officer the file is sent to the Divisional Engineer and from the Divisional Engineer to the concerned SDO and as far as the OB is concerned there is no role of the JTO and is issued from the Commercial Officer and finally comes down to the SDO's office before being sent to the JTO before installation.
This witness has also stated that the jumper letter is a letter issued for making a telephone line operational which is returned by the JTO to the AE to inform about the installation of the telephone line and admitted that this line is installed by the field staff and after installation, the Annexures relating to the installation are got filled in by the JTO himself from the subscriber and stated that the JTO sends the jumper letter to the Tele Printer Cell from where, after making entries it is sent to the SDE record. This witness further stated that he was not very sure whether there was a rule which provides that the JTO himself visits the premises and gets the Annexures filled in. This witness also admitted that the job of providing STD or ISD facility is of the Divisional Engineer Switch Room and not with the JTO (Outdoor) and stated that there is no direct connection between the JTO and the subscriber in relation to the issuance of the OB. He 104 further stated that after the jumper letter reaches the Record Section the telephone is activated and after the same, the jumper letter along with the Annexures is sent to the Commercial Officer who thereafter compares the signatures on the Annexures with the original file of the subscriber for verification. The testimony of this witness and of the other witnesses produced by the prosecution including the testimony of the Investigating Officer, PW 27 Inspector Anil Kumar Singh makes it apparent that the best evidence in the instant case in the form of the testimony of the Commercial Officer of the MTNL has not been produced by the prosecution, nor have the guidelines in relation to the installation of the telephone connections been even attempted to be produced by the prosecution. In these circumstances, Ex. PW 4/DA dated 20.02.1989, a departmental circular of the MTNL testified by PW 4 to be still in operation which brings forth that the field staff/PI/JTO are not required to conduct a verification of the subscriber and which indicates that care has been taken by the MTNL to eliminate the visit of the field staff/PI/JTO from carrying out a bonafide check of the subscribers as it consumes a lot of time and creates problems, coupled with the factum that the testimony of DW 1 Shri Nihal Singh Saini, Divisional Engineer Nangloi Delhi as on the date 26.07.2012, makes it apparent that the JTO (Outdoor) does not get the Annexures for new connections filled in by the subscriber and rather they are got filled by the lines man and the mazdoor who go to the spot who hand over the Annexures filled in by the subscriber to the JTO (Outdoor), and that the line staff gives the pair i.e. cable pair to the Sectional JTO and if the line staff gives the pair it indicates the feasibility of installation of the telephone connection at the spot where after on receipt of the pairs from the line staff, the JTO issues the jumper letter and sends the red copy and black copy of the OB to the TP Cell and the TP Cell makes an entry of the jumper letter in its register and the TP Cell then sends the jumper letter to the Assistant Engineer FRS i.e. Fault Repair Service, the personnel of which allots the telephone number against the jumper letter and sends the same to the Switch Room and on receipt of the compliance report from the Switch Room of the connection of the telephone having been started from the Switch Room, the personnel at the FRS connects the telephone number to the pair given by the lines man and it is the personnel of the FRS who verify whether the telephone connection has been 105 installed at the correct place and to the correct subscriber and that the switch room sends the opening meter reading to the FRS at the time of seeking a compliance report of the connection of the telephone to the FRS and after the telephone connection is started, the FRS sends the red copy of the OB to the Accounts Section for billing and sends the 'black copy' and Annexure collected from the subscriber to the Commercial Officer of the area and the Commercial Officer of the area places the black copy and Annexure on the original file and tallies the signatures of the subscribers on the Annexure and the original file, and in the event of the Commercial Officer finding a problem in the signature he writes to the Divisional Engineer for verification of the bonafide of the subscriber, but if the Commercial Officer finds the signatures of the subscriber on the Annexure and on the initial application to be tallying, the telephone continues to operate and in the event of the Divisional Engineer finding any problem in relation to the bonafides of the subscriber, the telephone connection is stopped. This witness has further stated that the JTO (Outdoor) issues the jumper letter and after the JTO (Outdoor) receives the compliance report from the FRS against the jumper letter, a particular number is allotted, and this is the only role of the JTO (Outdoor), who has no connection with the Accounts Section billing and who has no role in the activation of the STD or the ISD and who also stated that in the event of non payment of the telephone bill for a period of three months, the telephone connection is disconnected by the Accounts Section.
The testimony of DW 1 as already observed elsewhere hereinabove, is categorical to the effect that the field staff who goes to the spot along with the intimation letter to the subscriber to get the Annexure to the same filled in does not come to know whether the person who is filling in the Annexure is the same person who has applied for the telephone connection and that the guidelines of the department are very clear that the field staff does not have to make any verification and has to only install the telephone and there is no method of checking of the identity of the applicant as being the same as given by the applicant of the original application. This witness has further categorically stated that in the event of the field staff demanding the proof of bonafidity in the form of identification or proof of residence, in the event of a subscriber complaining to the 106 department, a departmental inquiry is initiated against the employee.
The testimony of PW 21 Shri Sant Ram also significantly varies at each stage of the testimony, for though this witness initially stated that he did not know what was the name of the subscribers of the telephone connection at 5621/77, Regar Pura, Karol Bagh, on being cross examined by the Ld. Public Prosecutor he admitted that the two telephone connections had been installed by him in the names of the subscriber Sunita Sharma and Shri Surender Kumar, but on subsequent cross examination on behalf of the accused stated that he did not know the names of the occupant of the houses where he had installed the telephones and did not know Sunita Sharma and Shri Surender Kumar and could thus not identify them.
The testimonies of PW 21 Shri Sant Ram and PW 28 SI Pancham Lal bring forth that there were other regular mazdoors, Brij Lal and Lal Singh who accompanied PW 1 and PW 28 to the spot in question. Though the witness Lal Singh was produced in the witness box by the Ld. Public Prosecutor, the prosecution has chosen not to examine this witness. Further, the witness Brij Lal was not even produced. The non examination of the witness Shri Lal Singh and the non - production of the witness Shri Brij Lal, both regular mazdoors of the MTNL, and alleged eye witnesses to the fake installation of the two telephone connections casts a serious cloud on the veracity of the prosecution version. Another significant aspect which cannot be overlooked is that the testimony of the Investigating Officer brings forth that he has not perused the commercial guidelines of the MTNL during the investigation of the case, that the Commercial Officer who sanctioned the installation of the telephones has not been examined during the course of investigation nor produced in the witness box to indicate as to how the telephone connection in the instant case was sanctioned without documentary proof. Ex. PW 15/A the letter dated 20.01.1998 of the GM Vigilance of the MTNL Ujagar Singh to the Superintendent of Police vide para 2 thereof states as follows:-
".............. 2. You may please refer to the discussion of the date 12.1.99 of Shri B.L. Hakhu, Vigilance Officer-II wherein in the copy of the SP report and the copy of the Circular quoted have been made over to you 107 indicating the discrepancy. This circular does not indicate any responsibility of the JTO concerned for personal verification of the genuineness of the subscriber in the case of OYT(G) category of telephones to which the telephone under reference belongs..............."
As per Ex. PW 15/D the letter dated 22.07.2002 of the then General Manager Vigilance Shri Ram Narain, the sanction for prosecution had been sanctioned against the accused No. 2 as the CGM (NTR) the disciplinary and lending authority of the accused No. 2 had issued the sanction for prosecution after satisfying itself of the CBI case, in as much as the CBI had explained that they had enough evidence against the accused and No. 2 and had insisted for issuance of sanction for prosecution against him.
Furthermore Ex. PW 15/B the copy of DOT 2 - 2/86 DHA dated 26.06.1995 issued by AG(PHA).DOT Sanchar Bhawan, New Delhi in relation to checking of bonafidity of the subscriber and provision of telephone connection within four weeks of issue of the OB states : -
"This has reference to office order of even number dated 11.12.1980 (copy enclosed) regarding checks of bonafides of the subscriber at the time of provision of telephone. It is reiterated that the verification of the bonafides of the subscriber at the time of provision of a new telephone connection under Non-OYT-SS, OYT-Gen. and OYT Special categories will not be necessary and the telephone connection will be provided at the address given by the subscriber. Check of bonafides will be carried non only be check the address of the subscribers and to see that in case of default of payment, correspondence can be made at the last registered address. For this purpose, a certificate from the subscriber in the standard proforma (copy enclosed) to be supplied by the department stating that the telephone connection is for his bonafide use will be sufficient. This certificate may be sent back with the completed copy of the advice made by the SDE (External) to the Commercial Officer who will verify from the records the signature on the certificate. If any unauthorized use of telephone is detected, stringent action should be taken under Indian Telegraph Rules."
which specifically reiterates thus that the verification of the bonafidities of the subscriber at the time of provision of a new telephone connection under non OYT SS, OYT General, OYT Special categories is not necessary and the telephone connection 108 would be provided at the address given by the subscriber and that the check of bonafidities would be carried out only to check the address of the subscriber in case of default of payment and that the address of the subscribers was taken so that in case of default of payment, correspondence could be made at the last registered address and that for this purpose a certificate from the subscriber in the standard proforma supplied by the department stating that the telephone connection was for his bonafide use, would be sufficient and that the certificate may be sent back with a completed copy of the advice made by the SDE (External) to the Commercial Officer who was to verify from the records the signatures on the certificate and that if there was any unauthorized use of the telephone detected, stringent action would be taken under the Indian Telegraph Rules.
Ex. PW 15/C, the Commercial guidelines of the MTNL Corporate Office indicate that on receipt of a request for a telephone from a subscriber, the guidelines to be followed for providing with the facility are as at page 4 thereof as follows : -
"....................i) On receipt of request, check on the basic details like name of the party, address etc. with the local FRS. This should tally with the details given in the subscriber's letter.
ii) Divisional Engineer could ring up the customer or depute a person to customer's premises but without giving any impression of harassment to the customer and also keeping in mind that the requisite job is to be done in four working days. Wherever considered necessary, QCSC could send a courier to Area Commercial Office for verification of signature. While customer is not to be normally called, in an extreme case, if the Divisional Engineer feels that could resolve the issue, he may do so only at his personal level. But such cases should be minimal.
iii) OB's to be issued by the Divisional QCSC and got executed through the field officers of the division.
iv) In case of provision of STD/ISD, the subscriber should be informed by registered post, that as per his request, referring to his letter, the job has been completed. Draft letter is enclosed as Annexure IA. Copy of this letter along with copy of the OB should also be sent to the Commercial Officer concerned so as to form part of commercial records in the area office. Registered letter is suggested in case of reactivation of 109 STD/ISD as well. The letter being sent to subscriber could also be registered in case of local shift and could be sent both at the old and new address if required. The registered letter is sent to the subscriber in acknowledgement of having provided the facility asked for by him and if any omission were there, the same could be corrected by the Divisional Engineer, if so pointed out by the concerned subscriber. In other cases of provision of facilities, an ordinary letter will be good enough. Copy of letter alongwith copy of OB in every case should be given to the area Commercial Officer.
v) Completed advice note copy to be sent to TP for billing soon after the job is completed.
To assist Divisional Engineer in the work of QCSC, an Asstt. Engineer designated as A.E. (Customer Services) should be posted. He will co-ordinate the provision of various facilities asked for at the QCSC with the officers concerned in Outdoor as well as Indoor, depending upon the nature of the job. He will issue the OB's and he will ensure the work is completed in four working days.
vi) Once a week the area General Manager will review the provision of the facilities by the divisional QCSC and he should ensure that all cases received are executed. If any case is pending at the divisional level, he may have to satisfy himself for the delay in non provision of the facility. He should ensure that all cases get provided in the stipulated period of four working days.
Bonafidity Existing commercial rules merely require obtaining a confirmation from the subscriber in the format as per prescribed Annexures A, B & C (slightly modified version of which are attached as Annexure II). Annexure IIA & IIB are in respect of new telephone connection and Annexure IIC is for the shift of telephone. No other verification such as check of ration card or identity card/passport etc. is intended. If subscriber is not in a position to sign the annexure, the decision as to whether to comply with the request or not can be taken on the totality of circumstances by the DE or at a higher level.
It may please be noted that the field staff is prohibited from questioning subscribers and demanding proof of bonafidity from them. If after obtaining 110 confirmation as per the Annexure IIC, they have any doubt they should complete the work and report the matter through the Divisional Engineer to the Area GM who would correspond further with the subscribers post facto."
The testimony of PW 1, the sanctioning authority Mr. A.K. Walia, i.e. the Deputy General Manager (Administration) of the MTNL on 09.08.1989 brings forth that he categorically admits that in case of sanctioning of a new connection the service line is installed by the staff of the JTO (Outdoor) and after installation of the service lines, the jumper letter is issued by the JTO (Outdoor) and its connection is activated by the JTO (Outdoor) or any person authorized by the committee inside the exchange.
The available record thus brings forth that the contention raised by the accused No. 2 Shri Manohar Singh posted as the JTO (Outdoor) of the MTNL in the year 1995-96 that the physical verification of the address of the subscriber was not part of his duty is also borne out by the circulars exhibits PW 15/B and Ex. PW 15/C of the MTNL in as much as Ex. PW 15/C specifically prohibits the field staff from questioning the subscriber and demanding proof of bonafidity from them.
The accused No. 2 has further admitted that Ex. PW 6/A i.e. the jumper letter No. 5972 dated 28.09.1995 was issued by him, (which jumper letter is in the name of Surender Kumar at the address 5621/77 Regar Pura) but it was stated by the accused No. 2 that though the jumper letter is issued by the JTO and it was stated by the accused No. 2 that physical verification of the address of the subscriber was not part of his duty and he had not taken Annexure A from the subscriber and has categorically stated that at the relevant time the relevant rules prevented any queries being made from the subscriber and no physical verification could be done. The accused No. 2 has admitted that he instructed the Phone Inspector to give the directions to the Regular Mazdoors for installation of the two telephone connections in the name of the subscriber Sunita Sharma and Surender Kumar at 5621/77, Regar Pura, Karol Bagh, New Delhi but stated that he did so on the orders of the Senior Officer i.e. the Commercial Officer Mr. A.K. Malik.
The accused No. 2 has further categorically denied that PW 28 Mr. Pancham Lal then Sub Inspector of the MTNL had informed him i.e. the accused No. 2 that at the spot he had not met Mr. Surender Kumar and had met Jyoti accused No. 1 and 111 her mother who had asked Mr. Pancham Lal not to make inquiries about Shri Surender Kumar and to install the line as per instructions given by accused No. 2 and also denied that PW 28 Mr. Pancham Lal had informed him i.e. the accused No. 2 after returning to the exchange that he had not met the parties against whom the OB had been issued and further denied that he had told PW 8 that he had nothing to do with the party being present or not. The accused No. 2 has also further categorically denied that the co- accused No. 3 Mr. Om Prakash Telephone Operator of the MTNL handed over the jumper letter in respect of telephone No. 5767106 personally to Rakesh Kumar then Operator in the Karol Bagh in November 1995 and stated that the JTO sends the jumper letter to the Tele Printer Cell and thereafter there is no responsibility of the JTO. The accused No. 2 has also admitted that he had asked Mr. Pancham Lal Sub Inspector MTNL Karol Bagh Exchange to execute the OB No. 115735440 in relation to Sunita Sharma at the address 5621 Gali No. 77, Regar Pura, Karol Bagh, New Delhi but stated that he has so done on the orders of his Seniors but denied that accused No. 1 had asked the Sub Inspector Pancham Lal and his associates not to make any inquiries about Sunita Sharma and to install the telephone as directed by Manohar Singh JTO whereupon the telephone instrument of the make Panasonic had been provided by the accused No. 1 Jyoti. Accused No. 2 also denied that one day prior to the execution of the OB in the name of Sunita Sharma at the address 5621 Gali No. 77, Regar Pura, Karol Bagh, New Delhi, the OB in the name of Surender Kumar had been installed at the same premises, where the accused No. 1 Jyoti had asked Mr. Pancham Lal to install the line on the instructions of the accused No. 2 and that accused No. 1 had asked Mr. Pancham Lal not to make any inquiries about Mr. Surender Kumar.
As regards the reliance that has been placed on behalf of the CBI on the testimonies of PW 21 Shri Sant Ram and PW 28 SI Pancham Lal in support of the contention that the said testimonies inculpate and incriminate the accused No. 2 Mr. Manohar Lal the JTO wholly, it is essential to observe that though PW 21 Shri Sant Ram the Regular Mazdoor who has in examination in chief stated that it was the job of the JTO and the telephone Inspector to verify whether the subscriber at whose place a telephone had to be installed was residing/working there or not and it was the duty of 112 the JTO and Telephone Inspector to verify the address of the subscriber, it is essential to observe that this very witness on being cross examined, has stated that he is illiterate and that he was not aware about the contents of the circular regarding installation of the telephone and that he was not aware of the meaning of the word "verification". This witness has also stated that he was not aware as to who was Sunita Sharma and Surender Sharma and therefore could not identify them nor could he give the addresses where he installed the telephone nor had he asked the names of the occupants of the houses were installed the telephones and that SI Pancham Lal used to being the work from the office and entrust the same to him and the other mazdoors i.e. Brij Lal and Lal Singh who used to work with him, both of whom were not produced by the prosecution as witnesses, in as much as the witness Lal Singh though put forth as PW 22 was dropped by the CBI on 29.01.2010 as being unnecessary and the other witness Mr. Brij Lal was not even been produced in the witness box.
The testimony of PW 28 SI Pancham Lal under whose directions PW 21 and his other associates are stated to have worked and to have fitted the telephone connections in the name of Sunita and Surender Kumar at the residence where the accused No. 1 Jyoti was residing, indicates that it varies at every stage and thus it would be essential to advert to the ratio of the verdict of the Hon'ble Supreme Court in the case Vadivelu Thevar & Ors. Vs. The State of Madras 1957 Cri.L.J, 1000 (Vol. 58, C.N.
394)(1), paras 10, 11 and 12 thereof.
"On a consideration of the relevant authorities and the provisions of the Indian Evidence Act, the following propositions may be safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an 113 accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
Para 11 In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act, 1872, there have been a number of statutes as set out in Sarkar's 'Law of Evidence' -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. The Indian Legislature has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our Legislature has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the Legislature were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a 114 single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:
(1) Wholly reliable.
(2) Wholly unreliable.
(3) Neither wholly reliable nor wholly unreliable.
Para 12 In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the first witness, which is the only reliable evidence in support of the prosecution".
115The verdict of the Hon'ble Supreme Court in the case Krishna Mochi Vs. State of Bihar AIR 2002 SC 1965 is categorically to the effect that the maxim "falsus in uno falsus in omnibus" has no application in India and that even if a major portion of evidence is found to be deficient, in case the residue is sufficient to prove the guilt of an accused, notwithstanding the fact that the evidence has been found to be deficient to prove the guilt of other co-accused persons, the conviction of an accused can be maintained and it was the duty of the Court to separate the guilt from the chaff and where the chaff can be separated from the grain, it would be open to the Court to convict the accused, notwithstanding the fact that evidence has been found to be deficient to prove the guilt of the other accused persons, the conviction of an accused can be maintained and that falsity of a particular material witness or material particular would not ruin it from the beginning to the end and that the maximum 'falsus in uno falsus in omnibus' merely involves the question of weight in evidence which a Court may apply in a given set of circumstances, but it is not what may be called "a mandatory rule of evidence" and that the doctrine is a dangerous one specially in India, for if a wholly body of the testimony were to be rejected, because the witness was evidently speaking an untruth in some aspect, it is to be feared that the administration of the criminal justice would come to a dead-stop.
TESTIMONY OF PW 28 SI PANCHAM LAL:
As regards accused No. 3, the testimony of PW 28 SI Pancham Lal in relation to the allegations levelled against the accused No. 3 Om Prakash are corroborated through the circumstantial evidence through the report of the handwriting expert Ex. PW 11/A and thus both the testimony of PW 11 and the report Ex. PW 11/A and the testimony of PW 28 SI Pancham Lal lend credence to the complicity of the accused No. 3 in the instant case.
The testimony of PW 28 SI Pancham Lal in the instant case falls in the category of neither 'wholly reliable' nor 'wholly unreliable' and has essentially to be gauged with circumspection. This is so in as much as this witness despite knowledge of the fact that the installation of the telephone connection on the telephone instrument 116 provided by a subscriber was not appropriate and despite his having become aware at the time of installation of the telephone that the installation of the same was improper, he chose to install the telephone connections, • coupled with the factum that this witness has admitted that he had repeatedly been receiving the summons from the Court and had reported that he was not in a position to move about, coupled further with the factum that this witness on being cross examined by the counsel for the accused admitted that he was brought to the Court premises in a CBI vehicle;
• coupled with the factum that despite being aware that the installation of the telephone connections in the name of Sunita and Surender Kumar was incorrect and that the said persons were not found residing at the residence in question, the witness did not so complain in writing to his superior officers and stated that he had merely telephonically informed the JTO on the same day that the person in whose name the OB had been issued was not residing at the said premises, • coupled with the factum that this witness after installation of the phone against the OB in the name of Sunita Sharma did not even take the signatures of the subscriber after the installation of the telephone line though he had gone for the said purpose at the spot and stated that the same was the job of the JTO, coupled with the factum that he stated that at the time when they go for installation of a telephone at any premises, they are under no pressure from the subscriber, • coupled with the factum that though in his examination in chief this witness stated that he did not have a telephone instrument with him and the telephone instrument for installation was provided by Jyoti accused No. 1, on being crossexamined by counsel for accused No. 2, the witness stated that the wire for the telephone connection and the telephone instrument had been issued from the office and admitted that there was an entry made with regard to the issuance of the wire as well 117 as a telephone instrument in the register and there was a slip issued in the office in this respect and stated further that in case the telephone instrument was provided by the subscriber, the telephone instrument if any carried out at the time of the installation, issued from the office used to be returned to the office against proper entry, qua which no entries of the MTNL record to indicate the issuance of any telephone instrument for connections in the name of Sunita or Surender Kumar have been produced by the CBI nor has the entry been produced to indicate that the telephone instrument taken by SI Pancham Lal to the spot i.e. to the residence of the accused No. 1 had in any manner been returned back to the MTNL as the accused No. 1 Jyoti the purported Sunita Sharma had provided her own Panasonic instrument allegedly;
• coupled further with the factum that this witness on being cross examined on behalf of the CBI categorically denied that he had not carried the MTNL instrument with him when he visited the premises of Jyoti the second time for installing the line in the name of Surender Kumar but stated that this line in the name of Surender Kumar was also connected with the same telephone instrument of the make Panasonic in which the earlier line in the name of Sunita Sharma was connected, all make it apparent that the above detailed discrepancies thus make the testimony of SI Pancham Lal unreliable, qua the allegation levelled against the accused Nos. 1 and 2.
ACCUSED NO. 3:
As regards the accused No. 3 Om Prakash, the Telephone Operator, Karol Bagh Exchange of the MTNL in the year 1995-96, it has been sought to be brought on record that when Mr. Pancham Lal visited the premises No. 5621 Gali No. 77, Regar Pura, Karol Bagh, New Delhi the accused No. 3 was present at the residence of the accused No. 1 Jyoti and that the accused No. 3 had asked Pancham Lal to install the 118 telephone connection properly, as was so stated by PW 28 SI Pancham Lal on being cross examined by the Public Prosecutor for the CBI and through the testimony of PW 28 SI Pancham Lal, also, on being cross examined by the Public Prosecutor for the CBI, it has been stated by SI Pancham Lal that when he had to install the telephone line in relation to the OB issued in the name of Surender Kumar, the accused Om Prakash i.e. the accused No. 3 had met him i.e. SI Pancham Lal in the Telephone Exchange and had informed him i.e. SI Pancham Lal that he was to install the Telephone Line in the name of Surender Kumar at the same premises where he had earlier installed the telephone line in the name of Sunita Sharma, qua which the accused No. 3 through cross examination of PW 28 SI Pancham Lal and through his statement under Section 313 of the Cr.P.C. claimed that the said witness had testified falsely,_ as already observed elsewhere hereinabove, the testimony of SI Pancham Lal falls in the category of neither 'wholly reliable' nor 'wholly unreliable' and has to be analyzed and dealt with circumspection and has to be looked for corroboration in relation to material particulars by reliable testimony, whether direct or circumstantial.
In the instant case, the accused No. 3 has admitted that the handwriting at Q-18 on Ex. PW 27/G which is the duplicate application in the name of Surender Kumar with the address as to where the telephone was required being 5621/77, Regar Pura, Karol Bagh, New Delhi-110005, has been admitted by the accused No. 3 to be in his handwriting. The evidence on record establishes that Surender Kumar was not a resident of the premises where the telephone connection was so installed. The available record also establishes that the telephone connection was installed in the name of Surender Kumar in relation to telephone connection qua OB No. 3557106291, and that telephone No. 5766898 had been installed with ISD facility and conference facility in the name of Surender Kumar at the said premises where he was not so residing. The accused No. 3 has further categorically denied that the handwriting at Q- 19 which states "Yes" to the question "whether STD facility is required", the signatures at Q-20 i.e. of Surender the applicant, on the application form No. 876588, the writing at Q 21, Q 22, Q-23, Q-24 the application form No. i.e. 876588 on Ex. PW 27/H i.e. the specimen signatures sheet and the signatures of Surender, the stated applicant, at Q-25, 119 Q-26, Q-27, Q-28 also on the said specimen signatures sheet are not his, in relation to which it has been opined by the handwriting expert Mr. N.K. Aggarwal that the result of the examination conducted by him indicates "Handwriting evidence points to the writer of specimen handwriting/signatures marked as S-1 to S-38 being the person responsible to write the questioned writings/signatures marked Q-17 to Q-28", which specimen handwriting S-1 to S-38 exhibited as Ex. PW 11/S1 to Ex. PW 11/S-38 (D-15) is admitted by the accused No. 3 to be his handwriting and signatures as taken by the CBI personnel, and it has been reported by the handwriting expert as follows: -
"The questioned writings/signatures have been written freely showing smooth line quality, natural variations. Qualities of imitation are not present in them. The specimen writings are also written freely showing smooth line quality, natural variations and are suitable & sufficient for the purpose of comparison with the questioned writings/signatures.
Both the questioned and the specimen writings/signatures agree with each other in the general writing characteristics such as movement, spacing, slant, alignment, relative size, proportion of letters. The skill and line quality of the questioned writings/signatures is also found consistent with these qualities of the specimen writings/signatures.
Both the questioned and the specimen writings/signatures also agree with each other in individual writing characteristics without any material divergence. Some of the points of similarity are described below: -
(i) Manner of execution of capital letter S with the nature of start, nature of upper and lower body curve formation, their relative size and direction of finish of the terminating stroke alongwith natural variations as observed in the questioned writings is similarly observed in the specimen writing. Execution of this letter looking like small s with nature and position of start, nature of loop formation at the top, curvature of upper body, angularity in the lower body and compact loop formation/back retracing at the base, nature of its connection with the letter following small u as observed in the question signatures marked Q-20 and Q-25 to Q-28 is similarly observed in the specimen writings/signatures.
ii) Manner of execution of capital letter R with upretracing in its vertical staff, nature of upper body formation in its continuity, nature and position of its buckle formation, extended finish of the terminating stroke and direction of finish of the terminating stroke as observed in the questioned writings is similarly observed in the specimen writings.
iii) Manner of execution of capital letter E with the execution of vertical staff and lower horizontal staff in one operation and execution of upper and middle horizontal staff in separate operations alongwith their nature and relative positions as observed in the questioned writings is similarly observed in the 120 specimen writings.
iv) Manner of execution of capital letter K with execution of vertical staff in one operation and execution of right body in separate operation and nature of upper and lower right body formation, nature of junction between them and direction of finish of the terminating stroke as observed in the questioned writings is similarly observed in the specimen writings.
v) Manner of execution of capital letter A with upretracing in its left staff, nature of its top, relative position of base of right staff with respect to left staff in one operation and execution of horizontal stroke in separate operation alongwith its nature and position as observed in the questioned writings is similarly observed in the specimen writings.
vi) Manner of execution of other capital letters U, I, N, T, M, L, Y, P, B etc in detailed manner of execution of strokes comprising them as observed in the questioned writings is similarly observed in the specimen writings.
vii) Manner of execution of small letter u with the nature of start alongwith natural variations, nature of its body formation, nature of its connection with the letter following as observed in the questioned writings/signatures is similarly observed in the specimen writings/signatures.
viii) Manner of execution of small letter r with the nature of start in continuation of preceding letter, compact upper eyelet formation, angularity in its right body, curbed terminal, direction of finish of the terminating stroke/nature of its connection with the letter following as observed in the questioned writings/signature is similarly observed in the specimen writings/signatures.
ix) Manner of execution of small letter i with the nature of start in continuation of proceding letter, down retracing at the top of vertical staff, nature and position of its dot and direction of finish of the terminating stroke as observed in the questioned signatures/writings is similarly observed in the specimen signatures/writings.
x) Manner of execution of small letter n with the nature of formation of vertical staff, execution of right body in its continuity, nature of curvature at the base and angularity in its right body and slight curvature in its terminating stroke as observed in the questioned writings/signatures is similarly observed in the specimen writings/signatures.
xi) Manner of execution of small letter d with the nature of start, nature of body curve formation, down retracing/nature of loop formation in its vertical staff and direction of finish of the terminating stroke as observed in the questioned signatures/writings is similarly observed in the specimen signatures/writings.
xii) Manner of execution of small letter a with the nature of start, nature of body oval formation, down retracting in its vertical staff and curvature of the terminating stroke as observed in the questioned writings is similarly observed in the specimen writings.
xiii) Manner of execution of small letter h with downward start formation of vertical staff, execution of right body in its continuity, nature of angularity in its right body and curvature of terminating stroke as observed in the questioned writings is similarly observed in the specimen writings.121
xiv) Manner of execution of others small letters e, m, g, w, o, etc. in detailed manner of execution of strokes comprising them as observed in the questioned writings is similarly observed in the specimen writings alongwith natural variations.
xv) Manner of execution of figure 8 with nature and position of start, nature of upper left body curve formation, nature of lower body formation in clock wise manner and execution of upper right body in its continuity, nature and position of its closing as observed in the questioned writings is similarly observed in the specimen writings.
xvi) Manner of execution of figure 5 with nature of upper and lower body curve formation in one operation and execution of upper horizontal staff in separate operation alongwith nature and position as observed in the questioned writings is similarly observed int he specimen writings. xvii) Similar manner of execution of other figures and other combinations in the two sets of writings. xviii) Habit of putting dot after Surinder and Kumar as observed in the questioned writings marked Q- 18 is also similarly observed in the specimen writings.
xix) Similar manner of execution of english signature Surinder in the two sets of signatures. xx) Manner of execution of english words Surinder Kumar Rehgar, New Delhi, NIL, SURINDER KUMAR in detailed manner of execution of letter comprising them, their relative size, nature of connection between them as observed in the questioned writings is similarly observed in the specimen writings.
There is no fundamental difference. There are natural variations. Cumulative consideration of the aforesaid points of similarities observed in both general and individual writing characteristics between the questioned and the specimen signatures which are beyond the range of accidental coincidence constitute the basis for the aforesaid opinion....................."
Reliance was placed on behalf of the CBI on the verdict of the Hon'ble Supreme Court in the case Murari Lal Vs. State of MP, AIR 1980 Supreme Court 531 which is categorically to the effect that an expert is not an accomplice and there is no justification for condemning his opinion and evidence to the same class of evidence as that of an accomplice and to insist upon corroboration.
It is considered essential to advert to the following observations of the Hon'ble Supreme Court in the said judgment at paragraphs 4, 5, 6 and 7 thereof "4. We will first consider the argument, a stale argument often heard, particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his 122 opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses - the equality of credibility or incredibility being one which an expert shares with all other witnesses-but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non- existent. On the other hand, the science of identification of handwriting is not nearly so perfect and the risk is, therefore, higher. But that is a far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty 'is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).
5. From the earliest times, courts have received the opinion of experts. As long ago as 1553 it was said in Buckley v. Rice Thomas, (1554) 1 Plowden 118 : "If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of 123 that science or faculty which it concerns. This is a commendable thing in our law. For thereby it appears that we do not dismiss all other sciences but our own, but we approve of them and encourage them as things worthy of commendation."
6. Expert testimony is made relevant by S. 45 of the Evidence Act and where the Court has to form an opinion upon a point as to identity of handwriting, the opinion of a person 'specially skilled' 'in questions as to identity of handwriting' is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration
(b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the Court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S. 3) tells us that 'a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we set an artificial standard of proof not warranted by the provisions of the Act. Further, under S. 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that S. 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinions of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.
7. Apart from principle, let us examine if precedents justify invariable insistence on 124 corroboration. We have referred to Phipson on Evidence, Cross on Evidence, Roscoe on Criminal Evidence, Archibald on Criminal Pleadings, Evidence and Practice and Halsbury's Laws of England but we were unable to find a single sentence hinting at such a rule. We may now refer to some of the decisions of this Court. In Ram Chandra v. U. P. State, AIR 1957 SC 381, Jagannadha Das, J. observed: "It may be that normally it is not safe to treat expert evidence as to handwriting as sufficient basis for conviction" (emphasis ours). 'May' and 'normally' make our point about the absence of an inflexible rule. In Ishwari Prasad Misra v. Mohammad Isa, (1963) 3 SCR 722, Gajendragadkar, J. observed: "Evidence given by expert can never be conclusive, because after all it is opinion evidence", a statement which carries us nowhere on the question now under consideration. Nor, can the statement be disputed because it is not so provided by the Evidence Act and, on the contrary, S. 46 expressly makes opinion evidence challengeable by facts, otherwise irrelevant. And as Lord President Cooper observed in Davis v. Edinburgh Magistrate : "The parties have invoked the decision of a judicial tribunal and not an oracular pronouncement by an expert........."
It is thus categorically laid down by the Hon'ble Apex Court that it would depend upon the circumstances of each case as to whether or not the opinion of the handwriting expert would require corroboration or not and that there is no hard and fast rule which justifies the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated and that the approach of a Court whilst dealing with the opinion of an handwriting expert should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept it or reject.
In the instant case the factum that the accused No. 3 has admitted that the handwriting at Q-18 on Ex. PW 27/G i.e. the duplicate application in the name of Surender Kumar (who was in-existent at the address 5621/77, Regar Pura, New Delhi- 110005 where the telephone connection was sought to be installed and where the telephone connection No. 5667106 was found installed) is his, and the testimony of the handwriting expert PW 11 Shri N.K. Aggarwal, Senior Scientific Officer Grade 1 CFSL New Delhi is categorical even on being cross examined on behalf of the accused No. 3 125 that the handwriting on Q-17 to Q-28 on Ex. PW 4/D are of the same person who has written Ex. PW 11/S1 and he has categorically denied that the author of the writings 11/S1 to 11/S38 is not the author of the writings on Ex. PW 4/D at points Q-17 to Q-28 and has denied that the said handwritings are of different persons, coupled with the factum that PW 11 has further categorically stated that there is a natural variation in writing the word 'Surender' at point A to A on Ex. PW 11/S1 while comparing the same with Q-17 to Q-28 in Ex. PW 4/D and that natural variations are bound to be present in the genuine writing and that this observation is based on well defined principles and that natural variations depend from case to case, coupled with the factum that Ex. PW 4/D i.e. Annexure A the statement of bonafide verification for provision of a new telephone where the application is an individual bears signatures at Q-17 which compare with signatures at Q-20 on Ex. PW 27/G and on Q-25, Q-26, Q-27, Q-28 on Ex. PW 27/H, the specimen signature sheet which indicate that the signatures on the specimen signature sheet Ex. PW 27/H i.e. Q-25, Q-26, Q-27, Q-28 are of those of the signatory of the questioned signature at Q-20 on Ex. PW 27/G, the duplicate application bearing No. 876588 for installation of the telephone connection at 5621/77 Regar Pura, Karol Bagh, New Delhi in the name of Surender Kumar, which signatures at Q-20 and Q-25, Q-26, Q-27, Q-28 have been testified by PW 11 the handwriting expert, to be in the handwriting of the person who has written the portion at Q-18 on Ex. PW 27/G i.e. the name of the applicant, the address at which the telephone is required to be installed, the author of which is admittedly the accused No. 3. There is nothing whatsoever on the record to disbelieve the testimony of PW 11. There is nothing brought forth on record by the accused No. 3 to indicate or even remotely that the testimony of PW 11 is tainted in any manner for any reason, nor as it been contended nor suggested during the cross examination of the witness PW 11, much less established nor so suggested during the cross examination of the witness PW 11. The submission that has been raised on behalf of the accused No. 3 is that the handwriting expert has himself admitted that there are variations in Q-21, Q-22, Q-23, Q-24 and signatures at Q-25, Q-26, Q-27, Q-28 on PW 27/H and in the handwriting at Q-19 and signatures at Q-20 on Ex. PW 27/G from the handwriting at Q-18 and it has thus been submitted on behalf of the accused No. 3, that 126 the factum that the handwriting expert has accepted the existence of variations in the questioned signatures and handwriting from Q-18 the admitted signatures, the same would suffice to exonerate the accused No. 3, cannot be accepted, as the testimony of PW 11 is categorical and firm and is not discrepant in any manner and there is no reason to disbelieve the testimony of this witness who is not an accomplice of the accused persons.
Furthermore the testimony of PW 28 SI Pancham Lal is categorical to the effect that when he visited the premises at 5621 Gali No. 77, Regar Pura, Karol Bagh, New Delhi, the accused No. 3 was present at the residence of Jyoti and that the accused No. 3 had asked Pancham Lal to install the telephone connection properly, and that when SI Pancham Lal had to install the telephone line in relation to the OB issued in the name of Surender Kumar, the accused No. 3 Om Prakash had met SI Pancham Lal in the telephone exchange and informed him that SI Pancham Lal was to install the telephone line in the name of Surender Kumar at the same premises where he had earlier installed the telephone line in the name of Sunita Sharma. As has already been observed elsewhere hereinabove, the testimony of SI Pancham Lal has been held to be neither 'wholly reliable' nor 'wholly unreliable' but in the facts and circumstances of the instant case, in view of the testimony of PW 11 the handwriting expert qua whose testimony it has already been observed hereinabove that there there is no reason to disbelieve the same, coupled also with the comparison of the specimen handwritings Ex. PW 11/S1 to S/38 and the signatures at Q-20 on Ex. PW 27/G i.e. the duplicate application for installation of the telephone connection and at Q-17 on Ex. PW 4/D i.e. Annexure A, the statement for bonafidity certificate for provision of a new telephone which the Court in terms of Section 73 of the Indian Evidence Act 1872 finds to be similar with natural variations as testified by PW 11 to be of the same person who is the author of S1 to S38 and as of the author of the signatures and handwritings on Ex. PW 27/G. Undoubtedly, the handwritings sent to the CFSL for comparison vide Ex. PW 27/D where the questions were to the effect whether Q-16 to Q-28 have been written and signed by the same person whose specimen handwriting are marked as S1 to S38, and the handwriting expert has not given an opinion in relation to Q-16, but the same does not 127 suffice to dislodge the testimony of PW 11 in view of the reasons mentioned in the report Ex. PW 11/A and the comparison by the Court in terms of Section 73 of the Indian Evidence Act of the admitted specimen handwritings S1 to S38 of the accused No. 3 and the admitted handwriting at Q-18 on Ex. PW 27/G, the duplicate application for the telephone connection in the name of the inexistent Surender Kumar at the address 5621/77 Regar Pura, Karol Bagh, New Delhi where the telephone connection No. 5767106 with STD facility was found installed.
The verdict of the Hon'ble Supreme Court of Sardul Singh Vs. State of Haryana AIR 2002 SC 3462, lays down as follows: -
"There cannot be a prosecution case with a cast iron perfection in all respects and it is obligatory for the Courts to analyze, sift and assess the evidence of record, with particular reference to its trustworthiness and truthfulness, by a process of dispassionate judicial scrutiny adopting apt objective and reasonable appreciation of the same, without being obsessed by an air of total suspicion of the case of the prosecution. What is to be insisted upon is not implicit proof. It has often been said that evidence of interested witnesses should be scrutinized more carefully to find out whether it has a ring of truth...Courts have a duty to undertake a complete and comprehensive appreciation of all vital features of the case and the entire evidence with reference to the broad and reasonable probabilities of the case also in their attempt to find out proof beyond reasonable doubt."
The verdict of the Hon'ble Supreme Court in the case Kehar Singh Vs. State / Delhi Administration AIR 88 Supreme Court 1883 brings forth that the provisions of Section 10 of the Indian Evidence Act, 1872 are to operate where the available record establishes the existence of a prima facie conspiracy which is undoubtedly in existence in the instant case and it is established that two or more than two persons have conspired together in the light of the knowledge of Section 120A of the Indian Evidence Act, 1872 and thus in the instant case, the acts of the accused No. 3 established through the testimony of PW 11 and the report Ex. PW 11/A and the supporting testimony of SI Pancham Lal, which lend credence to the report of the handwriting expert Ex. PW 11/A, as already observed hereinabove, bring forth the 128 culpability and the complicity of the accused No. 3.
CONCLUSION: -
On a consideration of the entire available record and the rival pleas addressed on behalf of either side and the analysis of the entire prosecution evidence and evidence led in defence by the accused, the statements of the accused under Section 313 Cr.P.C. 1973, the Court is of the considered view that the prosecution has been unable to establish the charge of allegations levelled against the accused No. 1 under Sections 120B, 468 and 471 of the IPC 1860 r/w Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 nor of the alleged commission of the offence punishable under Section 25 of the Indian Telegraph Act, 1885, in view of the factum that the CBI has been unable to establish the complicity of the accused No. 1 for the submission of forged documents in the name of Surender Kumar for installation of telephone No. 5767106 with STD facility at 5621/77, Regarpura, Karol Bagh, New Delhi and has also been unable to establish the installation of the telephone number 5766898 in the name of Sunita Sharma at the said house with ISD facility on the basis of forged documents. Though undoubtedly, as has already been observed elsewhere hereinabove, the existence of a conspiracy between accused No. 3 and other persons stands established, the culpability of accused No. 1 as being part of that criminal conspiracy is not established through any act, neither overt nor covert. The accused No. 1 Ms. Jyoti D/o Shri Shiv Kumar Kohli is thus acquitted of all allegations levelled against her in RC No. 20(A)/1996/CBI/ACB/ND.
As regards the accused No. 2 also, the CBI has been unable to bring forth the charge of allegations levelled against him to the effect that he had abused the official position in issuing jumper letters of the telephone numbers 5767106 and 5766898 without verifying the genuineness of the subscriber, in as much as the record produced through the circulars of the MTNL i.e. Ex. PW15/B and Ex. PW15/C coupled with the factum that vide Ex. PW15/A, the GM (Vigilance) of the MTNL had apprised the CBI that there was no responsibility of the JTO to conduct a personal verification of the genuineness of the subscriber for the case of OYT (G) category of telephones to which the telephones under reference belong to, coupled with the factum that sanction of the installation of the 129 telephones is the duty of the Commercial Official of the MTNL who has not been examined in the instant case by the Investigating Officer, whereby the best evidence has been withheld by the CBI, coupled with the fact that it has categorically been stated by PW28, that the decision where the telephone connection is to be installed is taken by the Commercial Officer and from the Commercial Officer the file is sent to the Divisional Engineer and from the Divisional Engineer to the concerned SDO and as far as the OB is concerned, there is no role of the JTO and the OB is issued from the Commercial Official and comes down to the SDO office before it is sent to the JTO before installation, which makes it apparent that accused No. 2 is entitled to the benefit of a reasonable doubt.
It is equally essential to observe that the CBI has not placed on record any guidelines specifying the role and duty of the JTO of the MTNL to bring forth its claim that accused No. 2 had committed any breach or dereliction of duty amounting to 'criminal misconduct' in terms of Section 13(1)(d)(i), (ii) and (iii) of the Prevention of Corruption Act, 1988. This is so in as much as though the sanction for prosecution for accused No. 2 was accorded by the MTNL after initially having been declined by the GM, MTNL specifying that the field staff is not supposed to come for any physical verification of the bonafides of the subscriber in view of the CBI having explained that it had sufficient evidence against accused No. 2, in as much as, no such evidence has been brought on record by the CBI to establish a link and nexus between accused No. 1, accused No. 2 and accused No. 3 in relation to the installation of telephone numbers 5767106 and 5766898 in the fake names of Surender Kumar and Sunita Sharma respectively on 5621/77, Regarpura, Karol Bagh, Delhi with STD and ISD facility thereon respectively, without verifying the genuineness of the subscribers and by misuse, and by corrupt and illegal means and abuse of his official position by accused No. 2, in conspiracy with co-accused No. 3. The alleged complicity of accused No. 1 in relation to the alleged commission of offences for installation of the telephone numbers in question in the fake names of Surender Kumar and Sunita Sharma at 5621/77, Regarpura, Karol Bagh, New Delhi, has already been held to have not been established against accused No. 1 through the evidence led by the CBI. The entire available record thus brings forth that accused No. 2 is entitled to the benefit of a reasonable doubt in relation to the allegations 130 levelled against him of the alleged commission of offences punishable under Sections 120B r/w Section 420, 468 and 471 of the IPC, 1860 r/w Section 13 (1)(d) (ii) (iii) r/w Section 13(2) of Prevention of Corruption Act, 1988 and under Section 25 of Indian Telegraph Act, 1885 and also in relation to alleged commission of substantive offences punishable under Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988 and under Section 25 of Indian Telepgraph Act, 1885, and thus the accused No. 2, Shri Manohar Singh S/o Shri Thakur Das is acquitted in relation to all allegations levelled against him in RC No. 20(A)1996/CBI/ACB/ND.
As regards accused No. 3, as already been observed elsewhere hereinabove, in view of the testimony of PW11 the handwriting expert and the report Ex. PW11/A and the comparison by the Court in terms of Section 73 of Indian Evidence Act of the admitted specimen handwriting on document Ex. PW 11/S1 to Ex. PW 11/S38 and admitted handwriting on Ex. PW27/G ,the duplicate application for the telephone connection in the name of Surender Kumar at the address 5621/77, Regarpura, Karol Bagh, New Delhi where telephone No. 5767106 with STD facility was found installed coupled with the incriminating supporting testimony of SI Pancham Lal (PW 28) brings forth that accused No. 3 was present at the time of installation of the telephone connection in the name of Sunita Sharma at the place where the installation had to take place and that the accused No. 3 had also met SI Pancham Lal (PW 28) at the Telephone Exchange when SI Pancham Lal had to install the telephone line in relation to the OB issued in the name of Surender Kumar and that accused No. 3 had informed SI Pancham Lal that he was to install the telephone line in the name of Surender Kumar at the same premises where he had also installed the telephone line in the name of Sunita Sharma. The explanation put forth by the accused No. 3 under section 313 of the Cr.P.C. 1973 for admitted existence of his handwriting at Q-18 on Ex. PW 27/G is thus held to be implausible.
The available record thus establishes the culpability of the accused No. 3 in relation to the proved commission of offences punishable under Section 120B r/w Sections 420, 467 and Section 468 of the IPC, 1860 r/w Section 13(1)(d) (iii) r/w Section 13(2) of the Prevention of Corruption Act, 1988 in as much as accused No. 3 by his 131 culpability and involvement in the installation of the telephone connections No. 5767106 and 5766898 in the fake names of Surender Kumar and Sunita Sharma who were not existent at the address of 5621/77, Regarpura, Karol Bagh, New Delhi, thereby abused and misused his official position by corrupt and illegal means and thereby caused valuable and pecuniary advantage of installation of telephone numbers with STD and ISD facility in the names of non-sexistent fake persons and caused damage and loss to the MTNL against public interest.
Even though, it is not brought on record that any pecuniary advantage was obtained by the accused No. 3, the factum that there has been a misuse and abuse of an official position as a Telephone Operator MTNL to facilitate installation of two telephone numbers in fake names of non-existent persons cannot be ignored.
The verdicts of the Hon'ble Supreme Court in the case N. Narayanan Nambiar Vs State of Kerala, 1963(2) Criminal law Journal, 186, and the verdict of the Hon'ble High Court of Delhi in the cases of Runu Ghosh, P. Rama Rao and Sukhram Vs CBI in CRLA 482/2002 509/2002 decided vide a single judgment on 21.12.2011, and the observations therein and the ratio of both of which, categorically lay down to the effect that the provisions of Section 13(1)(d) of the Prevention of Corruption Act take within their ambit cases of wrongful loss caused to the Government by abuse of power by a public servant and that Section 13(1)(d) cannot be circumscribed to include only cases of direct benefit and that the enactment is a socially useful measure conceived in public interest and should be literally construed so as to bring about the desired object i.e. to prevent corruption amongst public servants and to prevent harassment of the honest among them and also includes those actions of the public servant which are the consequence of his or her manifest failure to observe reasonable safeguards against detriment to the public interest, which having regard to all circumstances, it was his or her duty to have adopted and that even if the intention or desire to cause the consequences may or may not be present, as long as the decision or action which was taken which could not be termed by any yardstick, a reasonable one, but based on a complete disregard of a consequence, the act becomes culpable. The observations of the Hon'ble High Court of Delhi in the verdict dated 21.12.2011 in Sukhram's case which are categorical to the 132 effect that a public servant acts without public interest, if his action or decision is by manifestly failing to exercise reasonable precautions to guard against injury to public interest, which he was bound, at all times to do, resulting in injury to public interest, and even if he may not intend the consequence which ensues or which is likely to ensue but would surely have reasonable foresight that it is a likely one and should be avoided, sets the parameters of invocation of Section 13(1)(d)(iii) of the Prevention of Corruption Act 1988 in a crystallized domain making it apparent that the ingredient of 'mens rea' is not a 'sine qua non' of the applicability of Section 13(1)(d)(iii) of the Prevention of Corruption Act 1988 in cases where the facts of the case so indicate, as it has categorically been laid down by the Hon'ble High Court of Delhi in Sukhram's case that the application of the test of exercise of reasonable precautions by a public servant to guard against injury to public interest which he is bound at all times to do and the resultant injury to public interest, if any has to be objectively guaged.
The accused No. 3, Shri Om Prakash S/o Shri Nanwa Ram is thus convicted of the proved commission of offences punishable under Sections 420, 468, 471 & 120B IPC 1860 r/w Section 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, 1988, and also of the substantive commission of offences punishable under Sections 420, 468 and 471IPC 1860 and Section 13(2) r/w Section 13(1)(d) (iii) of the Prevention of Corruption Act, 1988.
The CBI has however been unable to establish the charge of allegations levelled against the accused No. 3 of the commission of any offence punishable under Section 25 of the Indian Telegraph Act, 1885, for it has not been able to establish that accused No. 3 had himself in any manner damaged, removed, tampered or touched any battery, machinery, telephone line, post or other thing whatsoever being part of all used in or about any telegraph or in the working thereof, to commit any mischief.
To come up for arguments on sentence on 30.03.2013 at 12:00 Noon qua the convicted accused No. 3 Shri Om Prakash S/o Shri Nanwa Ram.
Announced in open Court, (Anu Malhotra)
today the 28th day of March 2013. Special Judge CBI (PC-Act)-06
Tis Hazari Courts, Delhi.