Delhi District Court
State vs . Rupinder Singh & Ors on 26 March, 2021
IN THE COURT OF SH. ANIMESH KUMAR, METROPOLITAN MAGISTRATE06,
SOUTH EAST DISTRICT, SAKET COURTS, NEW DELHI
STATE VS. Rupinder Singh & Ors
FIR NO: 210/2002
P. S Kalkaji
U/s 420 r/w 379/120B IPC &
4/20/20A Indian Telegraph Act
Crc No./86355/2016
JUDGMENT
Sl. No. of the case : 150/2
Date of its institution : 24.05.2002
Name of the complainant : Sh. M L Shankhwar,
Asst. Director General TEII,
BSNL Corporate Office
States Man House, New Delhi.
Date of Commission of offence : March 2002
Name of the accused : Pankaj Kumar
S/o Sh. Prem Chand Kansal,
R/o H. No. 3038, Sector20D,
Chandigarh.
Offence complained of : 420 r/w 379/120B IPC &
4/20/20A Indian Telegraph Act
Plea of accused : Not Guilty
Case reserved for orders : 04.03.2021
Final Order : Acquitted
Date of orders : 26.03.2021
1
BRIEF STATEMENT OF FACTS FOR THE DECISION:
1. Vide this judgment, I seek to dispose off the case of the prosecution filed against the accused namely Pankaj for having committed the offence punishable u/s 120B & 420 r/w 379/34 of Indian Penal Code, 1861 (hereinafter referred as IPC) & 4/20/20A Indian Telegraph Act, 1885 (hereinafter referred as ITA).
2. Briefly stated, it is the case of prosecution that the accused persons Rupinder Singla and Pankaj by entering into a criminal conspiracy were running an illegal telephone exchange at 36B/1, G.F. Govind Puri, New Delhi after getting 26 telephone lines from MTNL thereby cheated the MTNL. The said telephone exchange was being operated by the accused persons by passing authorized VSNL gateway for receiving and making the international calls. The accused persons by entering into criminal conspiracy took the abovementioned premise on rent and obtained internet connection for facilitating the international calls using multiplexers, internet switch, packatizer and other equipment which were installed in the said premise. Further, it is also the case of prosecution that the illegal telephone exchange was being operated in the name of M/s Cosco Communications (hereinafter referred as the "Company") whose owner was the accused Pankaj. Accused Rupinder was the employee of the said Company and the premise was taken on rent in his name. Another accused Om Prakash Pandey (who was discharged at the time of framing of charge) was working in the said Company as a peon. It has also been alleged that the accused Pankaj had tampered and disturbed the leased telegraph lines and equipment provided by MTNL and thereby committed offence under the ITA Act also.
3. After completing the formalities, investigation was carried out by PS Kalkaji and a charge sheet was filed against the accused persons. Thereafter, charge was framed 2 against both the accused persons vide order dated 04.02.2004 u/s 379/420/120B/34 IPC & 4/20/20A Indian Telegraph Act, to which they pleaded not guilty and claimed trial.
4. It should be noted that the present judgment is being passed qua the accused Pankaj only as the coaccused Rupinder Singla is stated to be critically ill and admitted in hospital, therefore, proceedings against him could not be completed due to his absence.
5. In order to prove the guilt of accused Pankaj, the prosecution examined following eleven witnesses:
HC Satbir deposed as PW1;
Sh. K K Nayar deposed as PW2;
Sh. R K Shukla deposed as PW3;
Sh. G S Sharma deposed as PW4;
Sh. M L Shankhwar deposed as PW5, Sh. Madan Pal deposed as PW6 SI Nand Lal deposed as PW7 IO Inspector Gurdev Singh deposed as PW8 Sh. Sarvendra Singh deposed as PW9 and Sh. Gajraj Singh deposed as PW10
6. PW1 was the formal witness who proved the factum of registration of FIR in the present case. In his testimony, he deposed that on 22.03.2002 at 05:40 PM, the present case was registered on the basis of rukka sent by SI Gurudev through ASI Nand Lal. Copy of FIR is Ex. PW1/A.
7. PW2, PW3, PW4, PW5, PW6 are the witnesses from MTNL who have been examined by the prosecution in order to bring home the guilt of accused Pankaj. PW2 deposed that on 22.03.2002, he was posted as Assistant Vigilance officer at MTNL HQ, Khurshi Lal Bhawan, Janpath Delhi and on that date he along with Vigilance officer M L Sankhwar and some other officers of VSNL police officials went to the office of special cell Delhi Police Lodhi Road. Sh. M L Shankwar gave a written complaint to Inspector Sh. Gill about misuse of MTNL telephone lines for forwarding international calls illegally through 3 high tech equipments by company run by accused Sh. Rupinder Singhla at 36 B/1 Ground Floor gali no. 1, Govind Puri, Kalkaji. The complaint is Ex. PW1/A. Further, he deposed that after discussion of police officials, a raiding party was formed including officers of Delhi Police, MTNL, VSNL & DOT. The raiding party went to the premises and a joint inspection was conducted and one employee was found who told them that the company is being run by Sh. Rupinder Singhla.
8. PW2 further deposed that after checking the said premise, it was found that 26 MTNL lines were installed and out of those 26 lines 22 lines were further extended to a small room on the ground floor. After tracing the lines, it was found that out of 22 lines, 20 lines were terminated on a hightech equipment consisting of CAC access bank naura packetizer DSL router D Link Modum and near PC 22 instruments were also found which were not connected to the MTNL lines. The detail layout diagram of the equipment is prepared at the site and same is Ex. PW2/A. Further, a highspeed internet lease line was also coming to the small room which was further terminated on the abovementioned equipment along with the MTNL lines. Detailed inspection report was also prepared at the spot and same is Ex. PW2/B1. The photographs of the equipment were also taken and same are Ex. PW2/C 1 to 18 and negatives of the same are Ex. PW2/D. Further, detailed print out of the calls made by the some of the numbers which were put on observation were obtained from the Nehru Place Exchange and call verification was made by some members of the team on the numbers appeared in the print out and the said persons told that the calls were made by their relatives from abroad. The detailed report of the call verification is Ex. PW2/E and the observation print out as Ex. PW2/F. The same is attested by Sub Division Eng. Nehru Place MTNL Exchange Mr. K C Arora. The illegal equipment was seized by the Delhi police, same are Ex. PW2/G. During the course of investigation police recorded statement of PW2. On 02.04.2002, he produced commercial files of 26 telephone numbers to the IO and the same are Ex. PW2/I. The files on record shows that 4 the telephone connections were taken. Rupinder Singhla at 36 B/1 G.F. gali No. 1, Govind Puri and same are Ex. PW2/J.
9. PW3, PW4 & PW5 have deposed on the same lines of PW2.
10. PW6 has deposed that on 22.03.2002 he was posted at VSNL as Senior Engineer and on that date, he went to the spot i.e. 36 B/1, Govind Puri, at the instructions of G S Sharma who was vigilance officer VSNL. He was accompanied by other officials from VSNL, MTNL and DOT. They went inside the house and found that one illegal telephone exchange was being operated in the name of COSCO Communications. International calls were received by passing VSNL Exchange through this illegal exchange by operators. They prepared inspection report, lay out diagram and called verification report vide Ex. PW2/B1, B2, B3, B4, PW2/A and PW2/E. Due to the operation of the said illegal telephone exchange, VSNL and MTNL suffered an estimated loss of Rs. 40 lacs.
11. PW7 has deposed that on 22.03.2002, he was posted at Special Cell, Lodhi Colony and on that date, M L Shankhwal Vigilance Manager, AVO K K Nayar MTNL, DOT Director Sarvinder Singh, G S Sharma Vigilance Manager VSNL, Pankaj Mishra Sr. Manager VSNL came at about 02:00 PM and handed over a complaint. The complaint was marked to SI Gurudev Singh for further proceedings. Further Gurudev Singh prepared raiding party comprising ASI Gajraj Singh, Inspector H S Gill with other officials from VSNL, MTNL and DOT. They conducted raid at about 03:00 PM at H. NO. 36B/1 Govind Puri, where they found one telephone exchange was being operated illegally and one person namely Om Prakash Pandey was found there who was looking after the telephone exchange. Technical joint inspection was carried out of the premises and during inspection, it was observed that several outgoing and incoming calls were routed through this exchange by passing VSNL gateway. Layout plan was drawn and photographs were taken. IO prepared the rukka on the complaint of Sh. M L Sankhwar and sent him for registration of FIR. He got the case registered and came back to the spot and handed over 5 copy of FIR and original rukka to IO. Om Prakash who was looking after at exchange at that time handed over some documents including rent agreement in the name of accused Rupinder Singhla, another agreement whereby advance was paid, photocopy of election ID card of Rupinder Singhla, photocopy of the Pan Card of owner of the said house namely Parvez. On 02.04.2002 he along with IO went to MTNL office where they met with AVO MTNL namely Sh. K K Nayar who handed over 26 files which were taken into custody vide seizure memo already Ex. PW2/I. On 28.04.2002, he accompanied IO to Chandigarh at the house of coaccused Pankaj where accused Pankaj was arrested and was personally searched vide memo Ex. PW7/A and Ex. PW7/B. On 29.04.2002 accused Rupinder came in his office at Lodhi Road and surrendered. Accused Rupinder was arrested and personally searched vide memo Ex. PW7/C and Ex. PW7/D. IO recorded disclosure statement of accused Rupinder which is Ex. PW7/E. IO also recorded disclosure statement of accused Om Prakash and Pankaj vide memo Ex. PW7/F and Ex. PW7/G. Witness correctly identified the accused persons present in the court.
12. PW8 deposed that on 22.03.2002, he was posted at Special Cell and on that day, SH. M L Shankhwar, Vigilance Officer MTNL along with K K Nayar, Satpal who were also from MTNL, Sh. G S Sharma, Pankaj Mishra and Madan Lal from VSNL and Sh. Sarvender Singh from DOT came to the office and gave a written complaint regarding illegal telephone exchange at 36 B / 1 Kalkaji, New Delhi to Inspector H S Gill which was marked to him for further action. Thereafter, raiding party along with above officer and ASI Nand Lal and ASI Gajraj was prepared and proceeded to the spot. The above said persons raided the premises at 03:00 PM and one illegal telephone exchange was found in the name of the Company and one employee Mr. Om Prakash Pandey was found who was looking after the telephone exchange. He took the photographs of the said setup and same are Ex. PW2/C1 to 18. The negatives are Ex. P1. The setup was technically inspected and joint inspection report was also made which is already Ex. PW2/B1 to B3, layout diagram is already Ex. PW2/A, loss calculation report already Ex. PW2/E, seized 6 equipment vide memo already Ex. PW2/G, documents seized vide seizure memo Ex. PW8/A. The telephone was seized vide memo already Ex. PW2/H. Further, rukka was prepared and handed over to ASI Nand Lal for registration of FIR. Thereafter, Om Prakash was arrested vide arrest memo Ex. PW8/B and seized equipment were sent to Malkhana PS Kalkaji. Thereafter, statements of members of raiding team were recorded u/s 161 Cr.PC and commercial files were seized from MTNL ofice vide seizure memo already Ex. PW2/I. During investigation, he also seized some documents from the office of COSCO Communications Ltd., and the same is Ex. PW8/C. He also arrested all the accused persons and conducted their personal search which is already Ex. PW7/D. He also prepared the personal search memo of accused Om Prakash Pandey which is Ex. PW8/D. He also recorded the statement of Rupinder, Pankaj, Om Prakash which are already Ex. PW7/E to Ex. PW7/G. He also recorded the statement of the witnesses and after completion of investigation he filed the charge sheet before the court. Witness correctly identified both the accused persons present in the court.
13. PW9 deposed that on 22.03.2002 he was working as Director Vigilance Technical in Department of Tele Communication, Ministry of Communication and IT, New Delhi. On the same day, he reached to the Special Cell where a raiding party was constituted by the officers of Special Cell, Delhi Police based on the complaint made by ML Sankhwar, Vigilance Officer, MTNL, New Delhi. They had a definite information that an illegal telephone exchange was being run at 36B/1, Ground Floor, Gali No.1, Govind Puri, New Delhi for brining international calls and distributing it to Delhi and around telecom customers. This had not only caused revenue loss to the government and telecom licensees but was also posing threat to the security of the nation. Thereafter they moved in the said premises and reached there at about 5:00 pm and conducted the inspection. In the raiding party Sh. GS Sharma, Manager Vigilance, VSNL, Sh. Pankaj from VSNL, Sh. KK Naiyar, AVO MTNL and Sh. ML Sankhwar and police officers who were informed before raiding the said premises. On searching the premises / spot they found the 26 7 telephone lines of MTNL and sophisticated electronic equipment like multiplexer, modem, tag blogs, internet switch, packetizer etc. there, they found one internet lease line broadband obtained from M/s Cisco Communications Internet Service Provider. These equipment were interconnected resulting into automating switching telephone exchange. The call details records were obtained from Nehru Place Telephone Exchange few of these numbers found at the premises. This record showed huge number of local calls. On sample basis few of the records were picked up and verified from the customers who received these calls and they informed that the call received were actually international calls from their relatives and friends. A call verification report was prepared by the team which is already Ex. PW2/E. A joint inspection report was prepared at the spot and the same is already Ex. PW2/B. An equipment lay out diagram was prepared at the spot which is already Ex. PW2/A. This whole set up was in a small room at ground floor of the said premises. Sh. OP Sharma was found at the spot who was running the said illegal telephone exchange and maintaining / managing the said set up. From the call detail records obtained from the Nehru Place Telephone Exchange the loss of Rs. 4014720/ was incurred by the accused to the Government of India and telecom licencee. Photographs of the spot alongwith the case property was also taken by the police officials who were present at the time of raiding. At this stage, witness identified the said photographs which are already Ex. PW2/C1 to C18. Sh. OP Pandey was arrested from the spot. The said telephone line connections were in the name of one Rupinder Singla. The equipment / instruments were seized by the police in their presence which are already exhibited in the testimony of PW3 as Ex. P1 (colly) and the photographs of equipment are on the judicial file which are already Ex. PW2/C1 to C18.
14. PW10 deposed that on 22.03.2002 he was posted as ASI at Special Cell, Lodhi Colony. On that day in the afternoon he joined the raiding team with ASI Nand Lal, Inspector HS Gil and officers from MTNL, VSNL and DOT. Thereafter, they all went to the spot on a private vehicle and reached at the spot i.e. 36, B1, Govind Puri, Kalkaji, Ground 8 Floor, New Delhi. Raiding team inspected the spot and found that one illegal telephone exchange business was running by one Om Prakash Pandey and he was found at the spot. Sh. ML Sankwa had given a written complaint to Inspector HS Gil. Inspector HS Gil had marked the complaint to SI Gurdev who prepared rukka and hand over to ASI Nand Lal for getting registration of FIR. He was handed over the custody of the accused Om Prakash and he was standing at the side of the spot. His senior officers were inspecting and preparing documents of the spot and also clicked the photographs of the spot. Thereafter, ASI Nand Lal had reached the spot after registration of FIR and handed over the copy of FIR and original rukka to SI Gur Dev Singh and thereafter IO had prepared arrest memo of accused OP Pandey which is already Ex. PW8/B and personal search of accused OP Pandey which is already Ex. PW8/D and his disclosure statement which is already Ex. PW7/F. IO have also seized the documents relating to the property which is already Ex. PW8/C. Thereafter, IO had also prepared the seizure memo of documents which is already Ex. PW8/A. On dated 27.04.2002 the accused Pankaj Kumar was arrested from Chandigarh and IO had prepared his arrest memo, personal search memo and disclosure memo which are already Ex. PW7/A, Ex. PW7/B and Ex. PW7/G. On dated 29.04.2002 accused Rupendra Singla came to Special Cell, Lodhi Colony and he was arrested and his personal search was conducted and his disclosure statement was recorded and the memos are already Ex. PW7/C, Ex. PW7/D and Ex. PW7/E. IO had also conducted inspection of accused Rupendra and the same is Ex. PW10/A.
15. After examination of all prosecution witnesses, at the request of Ld. APP, PE was closed. Thereafter, statement of the accused Pankaj u/s 313 Code of Criminal Procedure, 1973 ("Cr.P.C") was recorded on 08.12.2020 wherein he denied the allegations and claimed to have been falsely implicated.
16. I have heard the Ld. APP and Ld. Counsel for the accused and have perused the case file.
917. The Ld. APP urged that testimonies of the material witnesses have remained unchallenged in the crossexamination and there is no reason to doubt their testimonies. The Ld. Counsel for the accused persons, on the other hand, argued that there is nothing on record which can prove the guilt of the accused persons beyond reasonable doubt. Hence, benefit of doubt must be given to the accused.
18. I have considered the rival submissions.
19. Before examining the testimonies of the witnesses, it would be prudent to briefly discuss the legal position involved in the present case.
LEGAL PROVISIONS INVOLVED
20. Section 120B IPC provides for the offence of criminal conspiracy. "Criminal conspiracy" is defined u/s 120 A IPC which reads as under:
"Definition of criminal conspiracy When two or more persons agree to do, or cause to be done, i. An illegal act, or ii. An act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy"
21. The essential ingredients to attract section 120A are:
i. There should be two or more persons.
ii. There should be an agreement between themselves.
iii. The agreement must be to do or cause to be done:
(a) An illegal act; or
(b) A legal act by illegal means.
22. Section 120A is a substantive offence. It is a settled proposition of law that in case of a conspiracy to commit an offence, the mere agreement is sufficient to impose liability without the requirement that some overt act in furtherance of the conspiracy should have been committed.
1023. Section 420 IPC provides for the offence of cheating and dishonestly inducing delivery of property. Simple cheating is punishable u/s 417 IPC. But where there is delivery or destruction of any property or alteration or destruction of any valuable security resulting from the act of person deceiving, the same falls under the ambit of section 420. It reads as under:
"S.420. Cheating and dishonestly inducing delivery of property.-- Whoever cheats and thereby dishonestly induces the person de ceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine"
24. The essential ingredients to attract section 420 IPC are:
Cheating;
Dishonest inducement to deliver property or to make, alter or destroy any valuable security or anything which is sealed or is capable of being converted into a valuable security; and Mens rea of the accused at the time of making the inducement.
25. It should also be noted that accused should have dishonest intention to cheat right at the time of making the promise or representation. If he does not have any such intention at the very outset and if he subsequently fails to fulfil the said promise, then he cannot be convicted for the offence punishable u/s 420 IPC. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of Hira Lal Hari Lal vs. CBI (2003) 5 SCC 257.
26. Having discussed briefly the legal position involved in the present case, I shall now be examining the testimonies of PWs and the defence taken by the accused in the backdrop of the above discussed legal position.
11FINDINGS
27. As discussed in the preceding part of this judgment, in the instant case, the accused has been charged for the offence punishable u/s 120B IPC, 420 r/w 379/34 IPC and section 4, 20 & 20A ITA. For the sake of convenience, I shall be examining the culpability of the accused person for each offence separately.
Culpability of accused u/s 120 B IPC
28. To bring home the culpability of accused Pankaj for the criminal conspiracy, the prosecution has relied upon the testimony of both police witnesses as well as witnesses from MTNL, VSNL and DOT.
29. In order to bring home the guilt of accused Pankaj for the offence of criminal conspiracy, it is imperative for the prosecution to prove the existence of an agreement to do an illegal act or do an act which is not illegal by illegal means. Existence of such an agreement between two or more persons is the essence of the offence of criminal conspiracy.
30. In the instant case, perusal of the testimony of PWs clearly suggests that the prosecution has miserably failed to prove the existence of such an agreement between the accused Pankaj and coaccused Rupinder. In fact, it is interesting to note that the complainant and the other officials of MTNL and VSNL have not deposed anything against the accused Pankaj. They had not even taken his name in their respective testimony. Further, the police witnesses examined by the prosecution also failed to prove an agreement to do illegal act or an act which is not illegal by illegal means between the accused persons. As per the chargesheet, it has been alleged that the accused Pankaj was running an illegal telephone exchange and the accused Rupinder was working for him. However, there is nothing on record which could prove this whole modus operandi. In 12 fact, the PWs of MTNL and VSNL deposed that Rupinder Singla was the owner of the Company and telephone lines were taken in his name.
31. Hence, the prosecution has not only failed to prove the existence of criminal conspiracy between the accused persons rather it has miserably failed to specifically establish the role of accused Pankaj in the present case. There is not even a single document on record against the accused Pankaj except his disclosure statement which is not admissible in evidence unless it leads to discovery of any fact. No such discovery has taken place in the present case. Even the police witnesses have not deposed anything against the accused Pankaj for the offence of criminal conspiracy.
Culpability of accused for the offence u/s 420 r/w 379/34 IPC
32. As discussed in the preceding paragraph of the judgment, it should be noted that mens rea of dishonest intention at the time of making the inducement is the crux of offence punishable u/s 420 IPC. For an offence under this section, it must be proved that the complainant parted with his property acting on a representation which was false to the knowledge of the accused and that the accused had a dishonest intention from the outset. Reference can be taken from the decision of the Hon'ble Supreme Court in the case of State of Kerala vs. A. Pareed Pillai & Anr. (1972) 3 SCC 661 wherein while discussing the contours of criminal offence of cheating u/s 420 IPC, the Hon'ble Apex Court has interalia held the following:
"To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention cannot be inferred from the mere fact that he could not subsequently fulfill the promise"
33. This ratio has been subsequently reiterated by the Hon'ble Supreme Court in the case of Hira Lal Hari Lal Bhagwati vs. CBI (2003) 5 SCC 257 wherein the Apex Court has interalia held the following:
13"40. It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. Form his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that these was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office bearers right at the time of making application for exemption. As there was absence of dishonest ad fraudulent intention, the question of committing offence under section 420 of the Penal Code, 1860 does not arise. We have read the chargsheet as a whole. There is no allegation in the first information report of the chargesheet indicating expressly or impliedly any intentional deception or fraudulent/dishonest intention on the part of the appellants right from the time of making the promise or misrepresentation. Nothing has been said on what those misrepresentations were and how the Ministry of Health was duped and what were the roles played by the appellants in the alleged offence. The appellants, in our view, could not attributed any mens rea of evasion of customs duty or charting the Government of India as the Cancer Society is a nonprofit organization and, therefore, the allegations against the appellants leveled by the prosecution are unsustainable. The Kar Vivad Samadhan Scheme certificate along with Duncan [(1996) 5 SCC 591: 1996 SCC (Cri) 1045] and Sushila Rani [(2002) 2 SCC 697:
(2002) 2 Apex Decisions] judgments clearly absolve the appellants herein from all charges and allegations under any other law once the duty so demanded has been paid and the alleged offence has compounded. It is also settled law that once a civil has been compromised and the alleged offence has been compounded, to continue the criminal proceedings thereafter would be an abuse of the judicial process.
34. Perusal of the above discussed case laws decided by the Hon'ble Supreme Court makes it very clear that in order to prove the guilt of an accused u/s 420 IPC, the 14 prosecution is required to prove the existence of dishonest intention on the part of the accused right at the time of making representation.
35. In the instant case, the prosecution has not brought anything on record against the accused Pankaj for the offence of cheating. In fact, it could not even establish the role of accused Pankaj in the present case. As per the PWs, the telephone lines were taken in the name of Rupinder Singla and he was the owner of Company which was running the illegal telephone exchange. The premise where the illegal exchange was being operated was taken on rent in the name of accused Rupinder Singla. PW,2 to PW6 and PW9 did not even take the name of accused Pankaj in their respective testimony.
36. Also, it is interesting to note that even the police witnesses examined by the prosecution to establish the role of accused Pankaj in the present case did not depose anything against him for the offence of cheating. All the police witnesses supported the case of prosecution to the extent of his arrest from Chandigarh. In fact, PW8, the IO of the present case, in his crossexamination had admitted that no documentary evidence was found out against the accused Pankaj during the course of investigation.
Culpability of accused Pankaj for offence under ITA
37. Section 20 ITA provides for establishing, maintaining or working unauthorized telegraph. It reads as under:
"If any person establishes, maintains or works a telegraph within [India] in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that section, he shall be punished, if the telegraph is a wireless telegraph, with imprisonment which may extend to three years, or with fine, or with both, and in any other case, with a fine which may extend to one thousand rupees.
Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), offences under this section in respect of a wireless 15 telegraph shall, for the purposes of the said Code, be bailable and non cognizable.
When any person is convicted of an offence punishable under this section, the Court before which he is convicted may direct that the telegraph in respect of which the offence has been committed, or any part of such telegraph, be forfeited to Government.]
38. The essence of this provision is establishing, maintaining or working an unauthorised telegraph lines (including telephone connection) without obtaining licence u/s
4. In the instant case, it is the case of prosecution that the accused Pankaj in a criminal conspiracy with the coaccused Rupinder was running an unauthorised telephone exchange. It should be noted that the telephone connections were taken in the name of accused Rupinder and the said premise where these connections were installed was also in the name of the same accused. As discussed in the preceding part of this judgment, there is nothing on record which can sufficiently prove the role of accused Pankaj in establishing, maintaining or working an unauthorised telephone exchange.
39. Section 20A ITA provides for the breach of condition of licence issued u/s 4. It reads as under:
"20 A. Breach of condition of license If the holder of a license granted under section 4 contravenes any condition contained in his license, he shall be punished with fine which may extend o one thousand rupees, and with a further fine which may extend to five hundred rupees for every week during which the breach of the condition continues.]"
40. Perusal of this provision makes it very clear it fixes culpability on the holder of license who contravenes any provision therein. In the instant case, PW2, PW3 and PW4 had clearly deposed that the 26 telephone connections were taken by accused Rupinder Singhla at 36 B/1, Ground Floor, Gali No.1, Govind Puri, New Delhi. It means that the 16 accused Rupinder was the holder of license u/s 4. Hence, accused Pankaj cannot be held liable for the breach of condition of licence which was in the name of accused Rupinder.
41. Hence, as discussed in the preceding part of this judgment, there is no document available on record which can prove the guilt of accused Pankaj in the present case. The case of prosecution against him is entirely based on his disclosure statement which is not admissible in evidence.
42. Therefore, in view of the above discussions and findings, I am of the considered view that the prosecution has miserably failed to prove the guilt of accused Pankaj beyond reasonable doubt in the present case for the offence u/s 120B IPC, 420 r/w 379/34 IPC and section 4, 20 & 20A ITA.
43. Hence, the accused stands acquitted the offence u/s 120B IPC, 420 r/w 379/34 IPC and section 4, 20 & 20A ITA.
44. Announced in the open court on 26.03.2021 (Animesh Kumar) MM06, South East, New Delhi It is certified that this judgment contains 17 pages and each page bears my signatures.
(Animesh Kumar) MM06, South East, New Delhi/26.03.2021 17