Delhi District Court
State vs . Mithlesh Sharma on 6 May, 2019
IN THE COURT OF METROPOLITAN MAGISTRATE02, DISTRICT EAST,
KARKARDOOMA COURTS, DELHI
Presided by: Mr. Jitendra Pratap Singh, DJS
State Vs. Mithlesh Sharma
FIR No. 153/2001
PS.Geeta Colony
U/s. 406/420/120B IPC and 20 & 25 of Telegraphy Act
JUDGMENT
1) SI No. of the case : 1691/16
2) The date of commission of offence : Year 2001
3) The name of the complainant : : Sh. M.L. Sankhwar
Vigilance Officer
MTNL, K.L. Bhawan, Delhi
4) The name & parentage of accused : Mithlesh Sharma
W/o Late Sh. Arvind Sharma
R/o H. No. 13/331,
Ground Floor,
Geeta Colony, Delhi
5) Offence involved : 420 IPC and 20 & 25
Indian Telegraph Act
6) The plea of accused persons : : Pleaded not guilty
7) Final order : Acquitted
8) The date of such order : 06.05.2019
Date of Institution : 13.09.2001
Judgment reserved on : 06.05.2019
FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 1 of 21
Judgment announced on : 06.05.2019
BRIEF STATEMENT OF REASONS FOR DECISION:
1. The FIR No. 153/2001, PS Geeta Colony was registered on the basis of the written complaint Ex. PW5/A of the complainant Sh. M.L. Sankhwar, Vigilance Officer, MTNL, Delhi to the effect that a source information was received to the effect that calls were being received in Delhi through a local number 2024852. That the information was further developed and it was detected that the said telephone is working in the name of Sh. Ankur Sharma at 16/50A, Geeta Colony. That from the MTNL record, it is further gathered that Mr. Ankur Sharma has obtained 26 DEL at the above address. That all the 26 lines were put on outgoing call observations. That detailed study of the print out revealed that heavy volume of outgoing calls were being generated from these numbers days and nights. That call verification from some of the numbers revealed that these calls were actually international calls and not local calls as reflected in the printouts. That a survey was also made in the locality and it was found that a Radio Antenna had also been installed at the above said address. It was suspected that Mr. Ankur Sharma in connivance with his mother Mithlesh Sharma (present accused) had obtained a international private leased circuit either from Software Technology Park of India or through some other Private Company and by terminating MTNL lines on unauthorized equipments such as MUX, I.P. Packetizer etc. and with the help of IPLC they were forwarding the international calls received illegally through these equipments to subscribers of Delhi and adjoining area through PSTN bypassing VSNL Gateway and FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 2 of 21 thereby causing loss of crores of rupees to Govt of India including the department of Telecom and VSNL. It is further stated in the complaint that the calls routed through this illegal Gateway cannot be monitored by the normal channel and it was prayed that that action may be taken after due investigation and bring the culprit to book for violation of Telegraphy Act.
2. Upon completion of investigation, charge sheet for the offences punishable U/s 420/406/120B IPC and 4/20/20A/25 Indian Telegraph Act was filed on behalf of the IO against the accused Ankur Sharma and Mithlesh Sharma. Both accused were consequently summoned. Accused Ankur Sharma challenged the order dated 7.05.2004 whereby the Ld. ACMM summoned him by filing revision petition No. 39/2004 which was allowed by the court of the Addl. Sessions Judge, KKD which was pleased to set aside the said summoning order. Perusal of file reveals that formal charge for commission of offence punishable U/sec. 420 IPC and 20 & 25 of Indian Telegraph Act was framed against the accused Mithlesh Sharma by the Ld. Predecessor to which she pleaded not guilty and claimed trial.
3. In order to prove the allegations against the accused persons, the prosecution has examined twelve witnesses.
4. PW1 G.S. Sharma deposed that on 13.06.2001, he was posted as Sr. Officer Vigilance in the department of MTNL, Delhi. That on that day, he coordinated and associated in conduct of inspection of top floor of premises 16/50A, Geeta Colony, Delhi with a team of officers comprising of Sh. M.L. Sankhwal (Vigilance Officer, MTNL); K.K. Nayyer (Asst. Vigilance FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 3 of 21 Officer, MTNL); Sh. Pankaj Mishra (Sr. Engineer, VSNL); Sh. Sarverder Singh (Director Vigilance, DOT) and police officials namely Inspector H.S. Gill and SI Gurdev Singh etc. He further deposed that during inspection which was conducted on 13.06.2001 at about 2.30 p.m., they observed that on the roof top of the premises a mast antennae (Radio antennae) was installed from which a high speed Internet bandwith was taken and it was connected through some cable to New era make packetiser installed in the aforesaid premises. That in the same premises 26 numbers of telephone line taken from MTNL were also present and interfaced with the Internet lease line through CAC (Carrieraccess Corporation, USA) and the telecom equipment like new era packetiser through telecom cables. He further deposed that technical member of their team sketched a diagram of entire equipments connected with the telephone lines and Internet lines which is Ex. PW1/A bearing his signature at point 'A'. He further deposed that during inspection, the team observed that none of MTNL telephone lines were connected with any telephone instrument which could facilitate manual calling rather, out of 26, 22 lines were interfaced with Internet lines through the said equipments. That MTNL officer from the team made a parallel on some telephone line and found that international voice calls were going on from the telephone lines. He further deposed that since the telephone lines were connected through equipment, it was observed that all the telephone traffic was being automatically switched from said set up and equipments by passing the ILD (International Long Distance) gateway of VSNL and causing huge loss of revenue to the Govt. of India and to telecom operators like VSNL and MTNL. That the entire observation made by the inspecting team was recorded in the joint inspection report drafted and signed by all the team members at the spot FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 4 of 21 after inspection and the said report is Ex.PW1/B, bearing his signatures at point 'A'. He further deposed that the equipment connected with said technical set up were seized by the police vide memo Ex.PW1/C bearing his signatures at point 'A'. He further deposed that after conducting inspection, he visited the Special Cell Office of Delhi Police at Lodhi Colony and gave his statement to the police on the same day and subsequently on demand of police officers/IO of the case, he also provided loss calculation through the above set up caused to the Government and telecom operators which was to the tune of approximately Rs. 1 Crore 39 lakhs against switching of incoming international calls and the said estimate was Ex.PW1/D, bearing his signatures at point 'A'. He further deposed that it was learned from neighbours that the aforesaid premises belonged to Mr. Ankur Sharma. He further deposed that he can identify the aforesaid equipments seized at the spot if shown to him, however, the identity of the case property was not disputed by learned defence counsel. Hence, the case property was exhibited as P1 collectively.
The witness was crossexamined by learned defence counsel in detail. During his crossexamination, the witness admitted that these calls cannot be monitored by law enforcing agencies. He stated that he had coordinated with vigilance team of MTNL and he knew that the accused had taken 26 telephone lines of MTNL. He stated that when he reached the spot, the premises was found opened and some police official were found sitting there. He further stated that at the time of inspection, he was not aware that the Primus Direct Internet Pvt Ltd had given Internet lease line to the accused at said premises.
FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 5 of 21
5. PW2 Pankaj Mishra has deposed on the similar lines as the evidence of PW1 and therefore, the evidence of this witness is not dealt with in detail for the sake of brevity. This witness has supported the story of prosecution. The witness was crossexamined by learned defence counsel.
6. PW 3 Sh. K.K. Nayyar has also deposed on the similar lines as the evidence of PW1.
7. PW4 W/HC Panwati has deposed that she was duty officer on 13.06.2001 and her duty hours were from 09:00 am to 05:00 pm. She further deposed that at about 04:35 pm, ASI Nand Lal brought one rukka sent by Inspector H.S. Gill for registration of case. That on the basis of the rukka, she registered the present case FIR No. 153/2001, carbon copy of which is Ex. PW 4/A, bearing her signatures at point 'A' and written in her own handwriting. She further deposed that she also made the endorsement on the rukka vide Ex. PW 4/B, bearing hers signatures at point A. She further deposed that after registration of FIR, she had handed over the copy of FIR and original rukka to ASI Nand Lal to hand over the same to Inspector H.S. Gill. The witness was not crossexamined by the accused despite opportunity.
8. PW5 Sh. M.L. Shanwar is complainant who has exhibited his complainant Ex. PW 5/A and has deposed almost on the similar lines as that of PW1. The witness was crossexamined by learned defence counsel in detail.
9. PW 6 Sh. Sarvender Singh, the then Director Vigilance in the FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 6 of 21 Department of Telecom, Ministry of Communication and IT, New Delhi who was the member of raiding party has also deposed similarly to that of PW1 and has corroborated his version. This witness has supported the case of prosecution. The witness was crossexamined by learned defence counsel.
10. PW7 Sh. Yashpal has deposed that in the year 2001, he was present outside the H. No. 16/50A, Geeta Colony and he was called by the police where some police persons and some officers of MTNL and VSNL were present. He deposed that the above said house belonged to Ankur Sharma and Mithlesh Sharma. He further deposed that the house was inspected and some equipments were found connected in a room and antenna was also found fixed on the roof of the house. He further deposed that equipments were seized vide seizure memo already Ex. PW 1/C, bearing his signature at point 'E. That one agreement of the above said house was executed between Ankur Sharma and Surender or Sudarshan and it was also seized vide memo Ex. PW 7A, bearing his signatures at point 'A' . He further deposed that locks of main door and room from which the above said equipments were recovered had been broken open and seized vide seizure memo already Ex. PW 2/A, bearing his signatures at point 'B; His further examinationinchief was deferred for want of agreement which was seized vide seizure memo Ex.PW7/A.
11. PW 8 ACP Sunder Lal has deposed on 13.06.2001 at about 12.00 noon some officer of MTNL, VSN and DOT i.e. M.L. Shankhwar, K.K. Nair, G.S. Sharma, Sarvinder Singh and Pankaj Mishra came to Special Cell. That Sh. M.L Sankhwar had given a written complaint to Inspector H.S. Gill FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 7 of 21 (Special Cell) and he after discussing the matter with the senior officers had prepared a raiding party consisting of all the above said persons and police officials i.e. himself, SI Gurdev, ASI Janak Raj and ASI Nand Lal. He further deposed that a raid was conducted at 16/50A, Geeta Colony and 26 telephone lines had been found installed at the 3rd floor the house. He further deposed that some computer and other equipments were also found installed there. He further deposed that the officer of MTNL, VSNL and DOT had prepared a joint inspection report and the photographer was also called to the spot who had taken photographs of the spot. He further deposed that rukka was sent through ASI Nand Lal and the present case was got registered. He further deposed that accused Mithlesh Sharma was present there and she was arrested. He further deposed that accused Mithlesh Sharma had produced an agreement which was seized vide seizure memo already Ex. PW 7/A, bearing his signature at point 'B'. During his examination, it was observed by the court that rent agreement was not on file and thereafter his crossexamination was conducted.
During his crossexamination by learned defence counsel, the witness admitted that names of the officials of MTNL, VSNL and DOT were not mentioned in his statement u/s 161 Cr. P.c. as well as names of police officials. He also admitted that no time of departure or arrival of the raiding party team was mentioned in his statement u/s 161 Cr. P.C. He further admitted that he had not stated that raid was conducted and 26 telephone lines had been found installed at the 3 rd floor the house No. 16/50A, Geeta Colony. He further admitted that he had also not stated in his statement u/s 161 Cr.P.C. that some computer and other equipments were also found installed there. He further admitted that he had not stated that the officers of FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 8 of 21 MTNL, VSNL and DOT had prepared the joint inspection report. He also admitted that he had not stated in his statement u/s 161 Cr. PC regarding the factum of photographer as well as rukka being sent through ASI Nand Lal. He further admitted that he also had not stated in his statement regarding arrest of accused Mithlesh Sharma.
12. PW9 Retired SI Nand Lal deposed that on 13.06.01, he was a member of raiding party at house No. 16/50A, 3 rd Floor, Geeta Colony, Delhi. That the accused person had installed an illegal equipment there. He further deposed that he was sent by the IO with rukka to PS for registration of a case. That thereafter, he came back to the spot alongwith the copy of FIR and original rukka and handed over the same to IO who had recorded his statement. He further deposed that on 25.07.01, he was alongwith the IO H.S. Gill when accused Mithlesh Sharma was arrested and her disclosure was recorded. He further deposed that he signed on the disclosure statement Ex.PW9/A at point A and his supplementary statement was recorded. The witness has correctly identified the accused Mithlesh Sharma in the court.
The witness was crossexamined by the learned defence counsel. During his crossexamination he stated that he did not have any technical diploma/degree. He denied the suggestion that all the proceedings were done while sitting the office of Special Cell, Lodhi Colony, Delhi.
13. PW10 Inspector Gurdev Singh has deposed that on 13.06.01, he was present alongwith the raiding party at house No. 16/50A, 3 rd floor, Geeta Colony, New Delhi. That the raiding party was comprising of MTNL, VSNL and DOT officials. He further deposed that illegal instruments were FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 9 of 21 found installed at the premises. That the sale agreement in favour of Ankur Sharma was handed over by Yashpal Sharma and the same seized vide memo already Ex.PW7/C bearing his signature at point C. He further deposed that due to installation of illegal instrument by accused, approximate loss of Rs.1.4 crores was caused to Govt. of India. He further deposed that the IO had recorded his statement. He further deposed that thereafter, on 25.07.01, he was alongwith the IO and accused Mithlesh was arrested and her disclosure statement already Ex.PW9/A, bearing his signatures at point B was recorded. That his supplementary statement was also recorded by the IO.
The witness was crossexamined by learned defence counsel. During his crossexamination, he stated that he did not have any technical diploma/degree as well as statistical degree or diploma. He admitted that the arrest memo does not bear his signatures. He denied the suggestion that all the proceedings were done while sitting the office of Special Cell, Lodhi Colony, Delhi.
14. PW 11 Smt. A. Krishna Veni has deposed that on13.06.2001, she was posted as Sub Divisional Engineer at MTNL, Laxmi Nagar, DV, Delhi. That on that day, at the request of the IO/Sh. H.S. Gill, she had handed over the call details in respect of several subscribers to the IO running into 183 pages Ex. PW 11/A, bearing her signatures at point 'A'.
The witness was crossexamined by learned defence counsel. During her crossexamination, learned defence counsel asked question whether she has personal knowledge regarding the said call details to which she replied in negative.
FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 10 of 21
15. PW 12 Retd. ACP Sh. H.S. Gill has deposed that on 13.06.2001, he was posted as Inspector at Special Cell, Lodhi Colony, Delhi. That on that day, Sh. M.L. Sankhtar, Vigilance Officer, MTNL alongwith other officials came to the office, Special Cell at Lodhi Colony, Delhi and submitted a written complaint to him regarding the illegal telephone exchange being run at Geeta Colony area, Delhi. He further deposed that after going through the said complaint which was already exhibited as Ex. PW 5/A, he had made his endorsement on the said complaint at point 'B'. That on the basis of complaint, he prepared a raiding party consisting of vigilance officers from MTNL and VSNL, DOT and other police officials and thereafter, a raid was conducted at 16/50, Geeta Colony, Delhi. He further deposed that an illegal telephone exchange was found to be running there. He further deposed that MTNL vigilance officials prepared layout diagram and joint inspection report. That thereafter, on the basis of complaint of complainant, he prepared a rukka at the spot which is Ex. PW 12/A, bearing his signatures at point 'B' and handed over the same to ASI Nand Lal for registration of FIR. That accordingly, he had taken the rukka to PS for registration of FIR and in the meantime, he had prepared the site plan Ex. PW 12/B at the instance of the complainant, bearing his signatures at point 'A'. He further deposed that thereafter, he seized the illegal equipments recovered from the spot vide seizure memo already exhibited as Ex. PW 1/C, bearing his signatures at point 'E'. He further deposed that he had also seized the agreement regarding the premises which was handed over to him by Sh. Yashpal vide memo which is already exhibited as Ex. PW 7/A, bearing his signatures at point 'D'. He further deposed that he had also seized the locks recovered from the spot which is already exhibited as Ex. PW 2/A, bearing his signatures at point 'B'.
FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 11 of 21 He further deposed that he had also placed on record the joint inspection report prepared by MTNL, VSNL, DOT and vigilance officials which was countersigned by him and which is already exhibited as Ex. PW 1/B, bearing his signatures at point 'E'. He deposed that he had also placed on record the layout diagram which was also countersigned by him and which is already exhibited as Ex. PW 1/A, bearing his signature at point 'E'. That the vigilance officer Mr. G.S. Sharma had given the loss report to him on his request which is already exhibited as Ex. PW 1/D. That he had taken call details report from MTNL Office, Laxmi Nagar, Delhi which is already exhibited as Ex. PW 11/A. That on 25.07.2001, he had arrested accused Mithilesh Sharma vide arrest memo Ex. PW 12/C, bearing his signatures at 'A' and she was also personally searched at his instance vide personal search memo Ex. PW 12/D, bearing his signatures at point 'A'. That he had also recorded the disclosure statement of the accused vide memo already Ex. PW 9/A, bearing his signatures at point 'C'. That he recorded the statements of all the witnesses. He further deposed that after completion of investigation, he submitted the challan to the court for trial. He further deposed that he could identity the case property if shown to him. The witness has correctly identified the accused Mithlesh Sharma in the court.
The witness was crossexamined by learned defence counsel. During his crossexamination, he admitted that site plan Ex. PW 12/B does not bear the signatures of any member of the raiding party as well as of any independent witness. He denied the suggestion that the said site plan was prepared by him while sitting at Special Cell, Lodhi Colony, Delhi. He further admitted that no agreement is placed in judicial file regarding the agreement Ex. PW 7/A. He denied the suggestion that the document already Ex. PW 7/A FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 12 of 21 was prepared to create a false evidence against the accused. He admitted that he had recorded the statement of Sh. G.S. Sharma u/s 161 Cr. P.C. Ex. PW 12/DX and that PW 1 Sh. G.S. Sharma has stated before him that these calls cannot be observed through set up. He admitted that 26 lease lines provided by MTNL on the property in question to Ankur Sharma. He further admitted that he has no technical degree or diploma pertaining to subject matter. The witness was questioned by learned defence counsel that whatever equipments were seized from the property in question were sent to any agency to decide that those equipments were illegal to which he replied that when the equipments were used for committing any offence, they became illegal and technical experts were present at the spot at the time of raid. He denied the suggestion that before the raiding party reaching the spot Sh. G.S. Sharma, the police officials were already sitting in property in question. He was again question by learned defence counsel that what is his criteria/parameter to ascertain the loss caused to DOT, MTNL and VSNL to which he replied that it could be better explained by the experts who had prepared the loss report. He stated that he had not received any information that accused was having tie up with Primus Direct Internet Ltd and that he did not know K.C Pandey and S.C. Tiwari. The witness was also questioned by learned counsel for accused that the calls in question could be monitored or not by any agency to which he replied that he could not say whether these calls be monitored or not, however, he stated that he had obtained the call details from the office of MTNL, Laxmi Nagar, Delhi. The witness had admitted that he had recorded the statement of Pankaj Mishra u/s 161 Cr. P.C in which he had said that the calls received through the set up cannot be observed. He further admitted that period has not been mentioned in the complaint during FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 13 of 21 which the accused bypassed the gate way of VSNL, MTNL. He could not recollect whether he had verified the account of the accused or not.
16. Thereafter, statements of the accused U/sec. 313 Cr.P.C r/w Section 281 Cr. P.C was recorded after conclusion of the prosecution evidence wherein she refuted the allegations levelled against her in toto and submitted that she has been falsely implicated. She stated that neither the said house belonged o her nor was she a tenant in the said house. She further stated that at the time of the alleged raid, she was not present the said premises. She further stated that the present complaint was made by VSNL officials to extort money from her. Accused chose not to lead defence evidence.
17. I have heard the arguments as advanced by the Ld. APP for the State and the Ld counsel for the accused and have also perused the record.
18. In a criminal trial, the onus remains on the prosecution to prove the guilt of accused beyond all reasonable doubts and benefit of doubt, if any, must necessarily go in favour of the accused. It is for the prosecution to travel the entire distance from may have to must have. If the prosecution appears to be improbable or lacks credibility the benefit of doubt necessarily has to go to the accused.
19. The present proceedings have emanated from a hand written statement dated 13.06.2011 Ex. PW 5/A made Sh. Sh. M.L. Shankwar, the Vigilance OfficerI, MTNL who has also deposed as the witness PW 5. It is FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 14 of 21 mentioned in the complaint that an information was received through the source of DOT (Department of Telecommunication) that a local number 2024852 working for one Ankur Sharma was being used to route international calls being received in Delhi. That the said Ankur Sharma had obtained 26 DELs at the address 16/50A, Geeta Colony, Delhi and these 26 lines were put up on outgoing calls observations. That a detailed study of the printouts of the observed calls revealed that heavy volume of outgoing calls was being generated from these numbers and the call verification from some numbers revealed that the calls were actually international. That a survey in the locality revealed that a Radio Antena was installed at the address. That it was suspected that the above said Ankur Sharma in connivance with his mother Mithlesh Sharma (accused in the present case) had obtained an international private leased circuit either from Software Technology Park of India or through some other private company and by terminating MTNL lines on unauthorized equipments such as MUX, IP Packetizer etc and with help of IPLC he had been forwarding the international calls received illegally through these equipments to the subscribers of Delhi and adjoining area through PSTN bypassing the VSNL gateway and thereby was causing huge loss to the Govt of India including the Department of Telecom and VSNL of crores of rupees. That calls routed through this illegal gateway could not be monitored by the normal channel. It is the case of the prosecution that on receiving this information, a raiding party was constituted comprising of SI Sunder Lal, SI Gurdev Singh, ASI Nand Lal, ASI Janak Raj, the complainant, Sh. Sarvinder Singh (Director, V. Tech DOT), Sh. K.K. Nayyar (AVO, MTNL), Sh. G.S. Sharma (Senior Vigilance Officer) and other officials and premises 16/50A, 3 rd Floor, Geeta Colony, Delhi was checked at about 2.30 PM and illegal FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 15 of 21 telephony was detected and illegally equipments were seized. A joint inspection report was prepared by the officials. That the premises was found to be in the name of Mr. Ankur Sharma who was running the illegal telephone exchange in connivance with her mother Mithlesh Sharma. That prima facie commission of offences punishable u/s 379/420/406/120B IPC and 20/20A and 24 of Indian Telegraph Act was made out for which the case was sent for trial.
20. Record reveals that vide order dated 07.05.2004 the accused Ankur Sharma was summoned for prosecution in this case by the then Ld. ACMM, however, the said order was set aside by the then Ld. ASJ vide his order dated 23.09.2004. The State has not challenged the said order. Thus, the case had proceeded only against the accused Mithlesh Sharma against whom the charges for the offences punishable u/s 420 IPC and sections 20 and 25 of Indian Telegraph Act were framed on 22.11.2006 to which she had pleaded not guilty and had claimed trial.
21. Ld. APP for the State has argued that in view of the evidence led on behalf of the prosecution, the recovery effected from the spot and the fact that accused Mithlesh Sharma was found present at the spot, it is clear that she was running an illegal and unauthorized telephone exchange and was instrumental in tempering the telephone line interfacing IPLC through PSTN and the said telephone exchange and the line fall within the definition of Telegraph as provided for under the Indian Telegraph Act and as such she has committed the offences punishable u/s 20 & 25 of the said Act. It has further been argued that by routing the international calls to the said illegal FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 16 of 21 exchange, the accused had caused a loss to the tune of rupees 1,39,06,585 to the government and such she is also liable for conviction for the offence punishable u/s 420 IPC.
22. On the other hand, the learned defence counsel has argued that the accused has been falsely implicated in the present case. That she has no connection either with the alleged illegal telephone exchange or with the premises in question. That there is no material to connect to the accused with alleged offence and as such she deserves to be acquitted.
23. Having heard the respective arguments, the court is of a conclusion that the prosecution has failed to establish its case against the accused Mithlesh Sharma.
24. As per the above mentioned statement Ex. PW 5/A, the 26 telephone lines were provided to one Ankur Sharma and out of the said 26 lines, it was found that a local number 2024852 was being used for receiving international calls and thereafter for diverting them. There has been placed no documents by the IO from which it can be ascertained that the accused Mithlesh Sharma had any connection with any of such telephone numbers. Alongwith the charge sheet, the IO has placed a letter dated 02.07.2001 authored by the above mentioned Sh. M.L. Shankhwar and addressed to Inspector H.S. Gill. This letter apparently is in reply to the letter dated 25.06.2001 of Inspector H.S. Gill. The letter mentions 26 telephone numbers pertaining to premises no. 16/50A, Geeta Colony, Delhi case FIR No. 153/01 and it is mentioned in the same that the said telephone numbers were allotted FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 17 of 21 to Ankur Sharma. This list also mentions the above telephone number 2024852. Despite that no investigation has been conducted qua the said Anukar Sharma. None of the articles seized by the police has been proved to be belonging or procured by the accused Mithlesh Sharma. There is no invoice or bill or statement of the supplier of alleged illegal equipments seized from the spot and being used for running the illegal exchange. No record has been placed before the court to connect the premises from where the alleged equipments were seized to accused Mithlesh Sharma. The investigation mentions a seizure memo Ex. PW 7/A regarding photocopies of an agreement of house no. 16/50A, Geeta Colony, Delhi and the said documents Ex. PW 7/A also record that it was mentioned in the said agreement that one Surender Kumar had sold the said premises to Ankur Sharma. This photocopy document has not been filed with the charge sheet and it was submitted on 03.03.2016 by the subsequent IO/SI Jagdeep Malik before the court that photocopy of the said agreement was handed over by PW 7 Sh. Yashpal to the then the IO and on the date of his deposition, he was not having any copy or original of the same. For this reason, the agreement was not filed on record. The charge sheet also does not mention any efforts on the part of the IO undertaken to verify the ownership of the premises and the relation of the accused with the premises. The arrest memo of the accused Mithlesh Sharma mentions her to have been arrested on 25.07.2001 from the office of Special Cell. Therefore, it is reasonable to assume that the accused was not found present at the time of inspection of the premises. In such circumstances, it was incumbent on the prosecution to produce before the court cogent evidence to prove that accused Mithlesh Sharma was instrumental or actively or passively involved in running of the alleged illegal telephone exchange.
FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 18 of 21 Apart from the vague allegations of the complainant that Ankur Sharma in connivance with his mother i.e. accused Mithlesh Sharma was running the telephone exchange, there is no other material brought by the prosecution against the accused Mithlesh Sharma. The complainant Ex. PW 5/A states that Ankur Sharma and Mithlesh Sharma had obtained international private lease circuit either from Software Technology Park of India or through some other private company but no investigation is found to have been conducted regarding any document in support of the accused obtaining such lease lines. A perusal of record of investigations leads the court to a joint inspection report Ex.PW1/B, bearing signatures of the above mentioned Sh. Sarvinder Singh, Sh. G.S. Sharma, Sh. Pankaj Sharma, Sh. M.L. Shankhwal, Sh. K.K. Nayyar and of the IO/Inspector H.S. Gill. During the evidence, none of the prosecution witnesses could reply regarding the author of the said inspection report. The same as such has remained unproved. The alleged loss to the Govt or to the telephone companies is based on a documents Ex. PW 1/D signed by Sh. G.S. Sharma, Senior Officer, Vigilance and it mentions a letter dated 23.07.2011 of AVO (SS), MTNL to be the basis of calculating the loss sustained by by the Govt. or department of DOT due to illegal activity of the accused persons. The said letter dated 23.07.2001 has not been proved by corroboratory material and the figure of loss has remained speculative and unsupported with any cogent and reliable document. As per the prosecution, the printouts Ex. PW 11/A are the record of the surveillance of the above said 26 telephone numbers but no witness of the prosecution has explained the method of surveillance. It has not been explained how the said documents could be printed when the complainant PW 5 Sh. M.L. Shankwar as well as PW 1 Sh. G.S. Sharma both have categorically stated that the international FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 19 of 21 incoming calls allegedly diverted could not be monitored. As per the testimony of Sh. G.S. Sharma, the police were already present when the raiding team comprising him and PW 3 Sh. K.K. Nayyar amongst other officials arrived at premises in question, however, PW 3 stated that raiding team had broke open the locks in order to enter into the premises. This is a material contradiction in the sequence of events of the alleged raid. None of the prosecution witnesses mentions the presence of accused at the spot. In such circumstances apart from the allegations that the accused Mithlesh Sharma was running the alleged telephone exchange, there is no other evidence brought during the trial which could establish the guilt of the accused.
25. As a sequence to the above said discussion, this court finds that the prosecution has failed to establish the guilt of the accused beyond doubt and the accused Mithlesh Sharma accordingly is held not guilty of the offences punishable u/s 420 IPC and u/s 20 & 25 of Indian Telegraph Act. She stands acquitted of the same. Ordered accordingly.
26. Before parting with the judgment, this court finds itself compelled to express its displeasure and bewilderment to the investigation conducted in the present case by the investigating officers. Despite there being sufficient material prima facie to opine that the telephone lines and connections allegedly used for committing the offence were in the name of Ankur Sharma, the IOs did not conduct any investigation qua the said person. The complaint Ex. PW 5/A also mentions the said Ankur Sharma to be an active participant of the alleged crime. Despite that the IO has conveniently named him only as a suspect. No sincere efforts have been made to investigate the relation of the FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 20 of 21 accused or the above mentioned Ankur Sharma to the premises in question. The court was unable to find any effort on the part of the IO to ascertain the source of the equipments used in the commission of the alleged offence. It has not been investigated as to whether the accused or anyone else had obtained any Internet connection for committing the offence. The court finds itself unable to assume that the shortcomings in the investigation were bona fide mistakes. Accordingly, the court found itself duty bound to bring the matter to the notice of the worthy Commissioner of the Police, Delhi for necessary information and for action, if any, found suitable in the circumstances. Accordingly, the copy of this judgment be sent by the Ahlmad of the court to the worthy Commissioner of Police of Delhi. Ahlmad is directed to submit a report in this regard within three working days. It is expected of the worthy Commissioner that an acknowledgement would be sent to this court.
File be consigned to record room after due compliance.
Digitally signed JITENDRA by JITENDRA
PRATAP PRATAP SINGH
Date: 2019.05.07
SINGH 17:06:27 +0530
Announced in open court (JITENDRA PRATAP SINGH)
on 06.05.2019 MM2/East/KKD Courts
Delhi
FIR No. 153/2001, PS Geeta Colony State Vs Mithlesh Sharma 21 of 21