Gujarat High Court
Sharad Manharbhai Varia vs State Of Gujarat & on 4 May, 2017
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
R/CR.RA/243/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL REVISION APPLICATION (AGAINST CONVICTION) NO. 243 of
2017
With
CRIMINAL REVISION APPLICATION NO. 244 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
SHARAD MANHARBHAI VARIA....Applicant(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
==========================================================
Appearance:
MR IH SAIYED with MR ANKIT B PANDYA, ADVOCATE for the Applicant(s)
No. 1
MR RC KODEKAR, ADVOCATE for the Respondent(s) No. 2
MR NJ SHAH, APP for the Respondent(s) No. 1
==========================================================
CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 04/05/2017
Page 1 of 60
HC-NIC Page 1 of 60 Created On Fri May 05 00:21:37 IST 2017
R/CR.RA/243/2017 CAV JUDGMENT
CAV JUDGMENT
1. The applicant - Sharad Manharbhai Varia of Criminal Revision Application No.243 of 2017 has challenged the judgment and order dated 15/03/2017 below Exh. 29 passed by the Court of Additional Sessions Judge, CBI, Ahmedabad confirming the order dated 16/01/2015 passed by the learned Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad for the offence punishable under Section 120B read with Section 420 of the Indian Penal Code, 1860 with R.I. of three years and fine of Rs.50,000/ and in default of payment of fine, to undergo R.I for a period of five months. The applicant was also imposed Section 120B read with Section 465 of the Indian Penal Code, 1860 for R.I of one year with a fine of Rs.10,000/ and in default of payment of fine, to undergo R.I. for a period of one month. The applicant was also convicted under Section 20 and 25 of the Indian Telegraph Act, 1885 with R.I. imprisonment of one year and fine of Rs.10,000/ and in default of fine, to undergo R.I. imprisonment for a period of one month. It has been further ordered that sentences awarded shall run concurrently.
2. The applicant - Pratik Bhupendrabhai Mehta of Criminal Revision Application No.244 of 2017 has challenged the judgment and order Page 2 of 60 HC-NIC Page 2 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT dated 15/03/2017 below Exh. 28 passed by the Court of Additional Sessions Judge, CBI, Ahmedabad confirming the order dated 16/01/2015 passed by the learned Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad for the offence punishable under Section 120B read with Section 420 of the Indian Penal Code, 1860 with R.I. of three years and fine of Rs.50,000/ and in default of payment of fine, to undergo R.I for a period of five months. The applicant was also imposed Section 120B read with Section 465 of the Indian Penal Code, 1860 for R.I of two years with a fine of Rs.20,000/ and in default of payment of fine, to undergo R.I. for a period of two months. The applicant was also convicted under Section 20 and 25 of the Indian Telegraph Act, 1885 with R.I. imprisonment of one year and fine of Rs.10,000/ and in default of fine, to undergo R.I. imprisonment for a period of one month. It has been further ordered that sentences awarded shall run concurrently.
3. The brief facts of the case is that accused No.1 namely Nilesh Bhalla and accused No.2 Harsh Japee accompanied with the present applicants without obtaining permission from the Government, set up an illegal telephone exchange and operated VOIP (Voice Over Internet Protocol) and for operating the same Page 3 of 60 HC-NIC Page 3 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT had procured items like Cell Rocket, Router, Switch, Hub through imports in the name of Network Consultancy and mobile simcards from Cellforce Company. That the accused No.1 and 2 took internet service from the company of accused No.3 and 4 also added the same. Thus by running illegal telephone exchange, the accused persons have caused financial loss of Rs.2,35,48,989/ to the government bodies like DOT, BSNL and Rs.1,79,00,000/ to VSNL. After investigation in matter, charge sheet was filed on 26/10/2004 which was registered as CBI Criminal Case No.142 of 2004 in the Court of learned Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural). It is submitted that the learned Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural) was pleased to discharge the accused Nos.1 and 2 and charges were framed against accused Nos. 3 and 4 of the case and after trial the learned Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural) was pleased to convict the accused Nos. 3 and 4 and thereafter the Appeal being Criminal Appeal No.1 of 2015 and No. 2 of 2015 were filed challenging the said order. Thereafter, the Appellate Court (Special Judge CBI Court No.2) vide order dated 15/03/2017 below Exh. 28 and 29 confirmed the order passed by the learned Additional Chief Judicial Magistrate, Page 4 of 60 HC-NIC Page 4 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT CBI Court No.2, Ahmedabad (Rural) in CBI Criminal Case No.142 of 2004.
4. The case of the prosecution is that S.P. Vineet Vinayak, C.B.I, SICI, New Delhi lodged a written complaint on 09/06/2003, being RC Y 1 2003 E 0002. That the investigation of RC 2 (S) 2003SIUI was going on and at that time inquiring about a mobile number 9825610251 and its calls details, it came to light that there was an illegal VOIP (voice over internet protocol) Call Termination services that was being run. It is also alleged that the accused persons used to run an illegal telephone exchange at 10, Devpath Building, Navrangpura, Ahmedabad for international calls termination in India. On the basis of this CBI personnel registered an FIR being RC Y I 2003 E 0002.
5. That Nilesh Bhalla (accused No.1) and Harsh Japee (accused No.2) had set up a company to take internet and broadband services named Network Consultancy, on 09/08/2001 being a partnership firm and as per their partnership deed the address of the firm was A63, Westend Park, Bodakdev, Ahmedabad. The accused No.1 and 2 had without the permission of the Government, had set up an illegal telephone exchange and operated VOIIP (Voice over internet protocol) and for operating the same had procured items like Cell Rocket, Page 5 of 60 HC-NIC Page 5 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Router, Switch, Hub through imports in the name of Network Consultancy and mobile simcards from Cellforce Company. That the accused No.1 and 2 took internet service from the company of accused No.3 and 4, being Blazenet.
6. That the accused No.1 and 2 had taken contract from M/s. Hercules Satellite Communication and M/s. Unknown Communication for telephone calls from USA. That the accused No.1 and 2 had taken internet connection from Blazenet and had set up at 233, Patel Avenue, Near Gurudwara Govindham, Bodakdev, Ahmedabad. Locally the accused No. 1 and 2 used to pay to M/s. Fasel Limited (Cellforce) for the services used and partners of M/s. Network Consultancy, i.e. accused Nos. 1 and 2 used to get foreign remittances and from 22/01/2001 to 10/10/2002, a total amount of Rs.47,86,424.28, on 12 different times have been received by M/s.Network Consultancy in HDFC Bank, Bodakdev, Ahmedabad. That on 31/10/2002 the partnership of accused No.1 and 2 got dissolved. That accused No. 1 conspired with present accused Nos. 3 and 4 and set up VOIP system at 10th Floor, Devpath Building, Navrangpura, Ahmedabad which was taken on rent through accused No.4. They had prepared some forged/false documents, Page 6 of 60 HC-NIC Page 6 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT prepared audit reports of 2002 of M/s. Gagan Green Forest Pvt., Jaipur and submitted to M/s. Fasel Limited (Cellforce), transferred the simcard connections to the name of M/s. Gagan Green Forest Pvt. Ltd. and started business with M/s. Goldline Inc., a company in Canada. That post to June 2002, there was no bill raised by Blazenet company, belonging to the accused No.3. That on 19/05/2003 this set up was caught by ACB BranchI, CBI. That this illegal set up was continued by accused No.3 and he started receiving foreign remittances by way of Western Union money transfers and such money was received in the IDBI Bank account of accused No.4. That the Internet Service Provider (ISP) should furnish a ISP Licence Agreement and should pay a nonrefundable fees of Rs.10,000/ to avail an internet telephone set up. Thus by the illegal telephone exchange so set up by the accused persons, caused a financial loss to the government set up bodies like, DOT and BSNL and VSNL.
7. Heard Mr.I.H.Saiyed, learned counsel for the appellants. He has contended that both the courts below failed to appreciate the concept of VoIP (Voice Over Internet Protocol). The concept of VoIP can be better understood by a diagram shown at the time of hearing. As per the concept of VoIP, Page 7 of 60 HC-NIC Page 7 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT operators from a foreign country convert the voice of a customer into data through an electronic equipment. The said data is then routed through internet using BSNL or VSNL as channels and said data is converted back into voice and forwarded to the customers.
8. He has contended that it is the case of the CBI that the data coming from the foreign country through internet is directly transferred to network consultancy thereby bypassing the legally permissible route of routing it through BSNL or VSNL and instead using SIM cards of Hutch. Network Consultancy converted the said data to voice and forwarded it to the customers. For carrying out such activity, network consultancy receives foreign remittance to the tune of Rs. 47,86,424/ as alleged wrongful gain. The network consultancy is owned by Accused Nos. 1 & 2 who allegedly participate actively in the working process of VoIP.
9. He has contended that the courts below have committed an error while not appreciating the evidence on record which indicates that the present applicants had not played any role in the commission of the offence. The court is conscious of the revisional powers u/s 397 & 401 of the Code of Criminal Procedure which are limited to test the correctness, legality, propriety Page 8 of 60 HC-NIC Page 8 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT of the judgment under challenge. The courts below committed an error in convicting the applicants in the applicants in the following manner. Therefore, the impugned judgments are illegal & improper.
Arguments of Applicant Sharad Varia:
10. He has contended that in the case of applicant - Sharad Varia both the Courts below failed to appreciate that one of the cardinal principles of our system of administration of justice in criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence, with which he is charged.
(i) The onus and burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of the burden, the courts cannot record the finding of the guilt of the accused.
(ii) Another golden thread which runs through the web of the administration of the justice in criminal cases is that if two views as possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to Page 9 of 60 HC-NIC Page 9 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT his innocence, the view of which is favourable to the accused should be accepted. Hence, going by the above said aspect in this case the prosecution has miserably failed to discharge its duty in order to prove the case beyond reasonable doubt against the accused.
(iii) The prosecution has failed to support its own case of that of an illegal telephone exchange being run by the accused persons. The evidence adduced by the prosecution does not corroborate or aid to raise a slightest doubt supporting the case of the prosecution.
1. He has contended that both the Courts below failed to consider the salient features pertaining to the Complaint/FIR, being:
(i) Complaint is not a substantial piece of evident but a corroborative piece of evidence and no conviction can be made solely relying on the allegations made in the FIR.
(ii) The deposition of PW2 Complainant, Exh.69, does not corroborate the whole contents of the complaint, Exh.70.
(iii) There is no mentioning of any date Page 10 of 60 HC-NIC Page 10 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT i.e. 19/05/2003 in Exh.70.
(iv) That there is not a single iota of evidence which corroborates the version as stated in Exh.70, such as expert opinion of BSNL. The entire evidence does not state the name, designation about the socalled expert from BSNL.
(v) Exh.70 contains inadmissible evidence such as admission of accused Nos. 1 and
2 before the Police Officer i.e. complainant IPS Officer of this case and therefore, hit by Section 25 of the Indian Evidence Act, 1872, which should have been bracketed and cannot be read in the evidence.
(vi) Exh. 70 contains hearsay evidence and such evidence is not admissible evidence as it contains versions of individuals who are not examined during the trial.
(vii) Exh.70 consists of two charts and as per evidence of PW2, Exh. 69, para 8; the complainant himself has not prepared the chart and there is no evidence in the case of the prosecution about who has prepared the chart; hence the chart is not proved.
(viii) That there is no complaint made on 19/05/2003 and as per the record of the complaint is made on 09/06/2003, hence Page 11 of 60 HC-NIC Page 11 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT it is a delayed FIR and clearly suggests to be that of a concocted and an after thought.
2. He has contended that both Courts below have wrongly believed the version of the complainant, inspite of the complainant being not believable and doubtful, which is clear from the following grounds:
(i) As per para 10 of Exh69, the complainant has no personal knowledge of VOIP. He is not an eye witness of any alleged offence of this case.
(ii) As per evidence of PW2, i.e. complainant, he has raided the place of offence on 19/05/2003 and thereafter he had locked and sealed the property.
(iii) In Code of Criminal Procedure, 1973 there is no provision for Police Officer which empowers him to lock and seal the immovable property. Even the complainant has not taken any permission from the competent authority to lock and seal the immovable property. Such lock and seal is never intimated to the concerned Court. Thus, the Police Officer has acted in an illegal manner.
(iv) That no seal or sample of seal were produced before the Courts below which Page 12 of 60 HC-NIC Page 12 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT were used on 19/05/2003.
(v) That no key was produced before the Courts below which was said to be used on 19/05/2003 and 13/06/2003.
(vi) There is no Panchnama which was made on 19/05/2003 regarding locking of the immovable property and no receipt or acknowledgment of handing over the key to and taking over the key from Shri Udham Singh. Moreover, Shri Udham Singh is neither examined in the court or during investigation regarding the said aspect.
(vii) That as per the complaint the alleged illegal activity was carried at 910, Devpath Building while the entire evidence could not corroborate that such alleged activity was carried out at 910, Devpath Building.
(viii) There is no evidence regarding the details of the items/ contents lying at the alleged place of offence further elaborating the exact situation prevailing at the alleged place of offence on 19/05/2003.
(ix) There is no videography/photography done at the alleged place of offence on 19/05/2003.
(x) The complainant has not taken any Page 13 of 60 HC-NIC Page 13 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT search warrant or permission for the competent Court before conducting the search at the alleged place of offence.
The search thus is not in compliance as per the provisions of the Code of Criminal Procedure, 1973.
3. He has contended that both the Courts below have filed to consider the following aspects:
(i) There is no evidence on record that the applicant - Sharad Varia is the owner or partner or proprietor or employee or by any other way for conducting any business on behalf of M/s. Network Consultancy Group or M/s. Gagan Green Forest Pvt. Ltd.
(ii) As per Exh.149 to 152, 161 to 165, Mr. Nilesh Bhalla and Mr. Harsh Japee are the partners of M/s. Network Consultancy Group. Exh.172 to 174 are documents relating to M/s. Gagan Green Forest Pvt. Ltd.
(iii) No evidence to show that BlazeNet has provided any internet connection to the Devpath Building.
(iv) No evidence to show that the applicant -
Shri Sharad Varia is the owner or was in Page 14 of 60 HC-NIC Page 14 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT possession of the socalled place (i.e. premises where the offence was committed or he was incharge of socalled premises)
(v) As per Exh.252, 253 Network Consultancy Group is the owner of the muddamal articles.
(vi) That file is also recovered from the applicant - Shri Sharad Varia.
(vii) No evidence to show that any illegal telephone exchange were working at 233, Patel Avenue, Near Gurudwara Govind Dham, Bodakdeve, Ahmedabad380054.
1. He has contended that both the Courts below failed to prove that the witnesses PW 1, PW3, PW4, PW7 and PW9 put up by the prosecution allegedly having received international calls:
(i) Both the Courts below have wrongly considered the depositions of the witnesses as stated above.
(ii) The prosecution has not submitted any evidence to corroborate that the phone calls receivers were the actual owners of the numbers on which they had allegedly received calls. Still the Courts placed reliance on such uncorroborated piece of evidence.Page 15 of 60
HC-NIC Page 15 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT
(iii) That there is nothing on record to state that the relatives of the said witnesses were staying at abroad and the international numbers from which the alleged calls were received is neither stated nor part of evidence placed by the prosecution.
(iv) Those callers who had allegedly made calls from abroad were neither named nor examined by the prosecution and thus the aspect of calls being actually made from a particular destination is not corroborated by any evidence and without any proof the Courts below have believed the say of the prosecution.
(v) They have not stated anything about the calls being illegal.
(vi) Moreover, they did not have a "Caller ID" facility. They never knew about the number from which the call had come.
2. He has contended that that both the Courts below failed to consider Section 25 of the Indian Evidence Act and have considered the inadmissible portion of evidence as evidence and have further falsely placed reliance on the same.
3. He has contended that both the Courts below failed to consider that the recovery of Page 16 of 60 HC-NIC Page 16 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT muddmal (i.e. cutter) being unbelievable:
(i) Exh.166 Recovery Memo is corroborative piece of evidence and such document is not corroborated by any witnesses.
(ii) Exh.166 is containing inadmissible evidence as per Section 25 of Evidence Act. Such inadmissible evidence cannot be considered by the Hon'ble Court.
(iii) No Panchnama was prepared to seize muddamal article no.1. No independent panchas are called for such recovery. No personal search of applicant - Shri Sharad Varia was carried out before such recovery. No such muddamal is recovered from socalled place of offence or from any place of the applicant - Shri Sharad Varia.
4. He has contended that both the Courts below have wrongly considered the Exh.202 to 204, without considering the following aspects:
(i) Exh.202 Inspection report is not corroborated by PW20 and 21.
(ii) Shri Ramaraj, Sshri R.S. Yadav are not examined.
(iii) Exh.203, Seizure memo contains inadmissible evidence. It is not corroborated by PW20 and 21. Such Page 17 of 60 HC-NIC Page 17 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT seizure is doubtful and illegal, as no independent panchas were present.
(iv) Place of seizure is not confirmed.
Owner of that place is not confirmed. No such permission is taken from the Courts for such search and inspection.
5. He has contended that both the Courts below have wrongly exhibited the photographs, i.e. photographs on the Exh.204 are not proved as photographer is not examined.
6. He has contended that both the Courts below erred in believing the story of the Investigating Officers who were not eye witness of this case. He has contended that both the Courts below failed to consider the aspect of PW28 Mr. Ramnish Shridharampal (I.O) as in para 20 of his cross examination, he admits that seized instrument of this case is owned by Network Consultancy. He had no oral or documentary evidence regarding transfer of that instrument. He had also not collected any documents relating to the ownership of place from where these instruments were seized. He has contended that both the Courts below have wrongly observed that when on knowing about an illegal act, a preliminary scrutiny is done and thereafter the complaint is to be lodged.
Page 18 of 60HC-NIC Page 18 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT
7. He has contended that both the Courts below have failed to appreciate the aspect that:
(i) On 19/05/2003, as per the prosecution agency 1st time when the alleged place of offence was sealed, no legal procedure was followed for sealing or searching the premises.
(ii) What was the actual position at the alleged place of offence at the time of entering of PW2 or at the time of sealing the place is not on record even though Courts have presumed the say of the prosecution.
(iii) There is nothing on record to state that the procedure which was followed by the Investigation Agency, neither any Panchnama is done nor any seizure memo is prepared on the basis of which once could understand the actual proceedings which happened on 19/05/2003.
(iv) That the say of the complainant (PW2) neither supported nor corroborated by either documentary or oral evidence.
Still the Courts below on its own inferences has believed the say of the complainant.
(v) Moreover, it can be clearly inferred that the custody or possession of the Page 19 of 60 HC-NIC Page 19 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT alleged place of offence from 19/05/2003 to 02/06/2003 was with the Investigating Agency.
8. He has contended that both the Courts below failed to appreciate that the witnesses relied upon by the prosecution did not support the case of the prosecution whereby the prosecution could not prove the case beyond reasonable doubt. He has contended that both the Courts below erred in not considering that at the time of the search of CBI at Devpath Building, the equipments and systems were found to be lying idle and they were not in "switched on" position. He has contended that both the Courts below erred in not considering that the offence under Section 420 of the Indian Penal Code, 1860 is not made out as there was no inducement done by the applicants to the complainant and there was no intention of the applicants since the very beginning to cheat the complainant.
9. He has contended that both the Courts below failed to appreciate that there is no oral evidence in the present case to connect the present applicant - Shri Sharad Varia for any offence under Section 120 read with Section 420 of the Indian Penal Code, 1860. He has contended that both the Courts below failed Page 20 of 60 HC-NIC Page 20 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT to appreciate that there is no oral evidence in the present case to connect the present applicant Shri Sharad Varia for any offence under Section 120 read with Section 465 of the Indian Penal Code, 1860. he has contended that both the Courts below erred in convicting the applicants under Section 120B of the Indian Penal Code, 1860, as there is not an iota of evidence to even remotely suggest the ingredients to constitute Section 120B of the Indian Penal Code. There is no direct, indirect, circumstantial or inferential evidence of conspiracy. Therefore also, the judgment and order of the Courts below convicting the applicants is required to be quashed and set aside.
10. He has contended that both the Courts below erred in giving Exhibit to the prosecution documents inspite of the same being not proved as per the provisions of the Evidence Act, 1872. That placing reliance on such documents and having wrongly considered the same have adversely affected the case of the applicant. He has contended that both the Courts below erred in not considering the legal preposition that the applicant had not to prove its case beyond reasonable doubt but he has to prove his case in light of preponderance of probability. He has contended that both the Courts below erred in Page 21 of 60 HC-NIC Page 21 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT convicting the applicants herein for the offences punishable under Section 120B read with Section 420 and 465 of the Indian Penal Code, 1860 and Sections 20 and 25 of the Indian Telegraph Act, 1885.
11. He has contended that both the Courts below erred in convicting the applicants merely on assumption and presumptions, which has resulted into miscarriage of justice. He has contended that both the Courts below erred in relying upon the authority cited by the prosecution. He has contended that both the Courts below have not properly appreciated that there are inconsistencies, embellishment and exaggerations in the evidence of the prosecution witnesses. He has contended that both the Courts below erred in not taking into consideration the authorities cited by the defence and also the evidence in the defence.
12. He has contended that the inferences drawn, presumptions made and conclusions arrived at by both the Courts below in favour of the prosecution and against the applicants herein is contrary to law, evidence on record and unwarranted. He has contended that both the Courts below ought to have done in mind the settled legal propositions, as propounded by the Hon'ble Supreme Court in catena of decisions, that it is primarily the duty of Page 22 of 60 HC-NIC Page 22 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT prosecution to bring home the guilt of the accused by leading cogent reliable and unimpeachable evidence. It is also at the same time duty of the prosecution to establish these aspects beyond reasonable doubt and they must coexist. If it is not proved by the prosecution, the benefit would be extended to the applicants.
13. He has contended that after examining 29 witnesses and also adduced documentary evidence in support of the case, without entering into the merits of the case as well as without considering the deposition of the witnesses, Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural), Mirzapur came to the conclusion on 16/01/2015 and convicted the applicant herein as well as accused No.3 Sharad Varia and thereafter, the applicant preferred Criminal Appeal No.2 of 2015 under Section 375 of the Code of Criminal Procedure, 1973 and the learned Special Judge, CBI vide his order dated 15/03/2017 confirmed the order passed by the learned Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural), Mirzapur. Therefore, the applicant is filing this Criminal Revision Application under Section 397 read with Sections 401 and 482 of the Code of Criminal Procedure, 1973 before this Hon'ble Court inter alia Page 23 of 60 HC-NIC Page 23 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT challenging the rejection of order passed in the Criminal Appeal No.2 of 2015 and also the conviction of the applicant imposed by the Additional Chief Judicial Magistrate, CBI Court No.2, Ahmedabad (Rural), Mirzapur in CBI Criminal Case No.142 of 2004.
14. He has contended that both the Courts below failed to appreciate that the learned Advocate for the applicant Shri Sharad Varia has mainly challenged the judgment and order on the grounds that the impugned judgment and order is erroneous and not based on the principle of law; there is no corroborate piece of evidence and conviction is made solely relying upon the allegations made in the FIR; there is no evidence to show that the applicant Shri Sharad Varia was owner, partner or proprietor or employee or any other way conducting business of M/s. Network Consultancy Group or M/s.Gagan Green Forest Private Limited; the callers who had allegedly made calls from abroad were neither named nor examined by the prosecution; the Courts below erroneously considered inadmissible portion of evidence, the Courts below have not properly evaluated the evidence, the Courts below erred in believing story of Investigating Officers who were not eye witnesses to the case; there is no oral evidence to connect the applicants with the Page 24 of 60 HC-NIC Page 24 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT offences; the applicants are convicted only in assumption and presumptions and lastly, it is prayed to allow the present application by setting aside the impugned judgment and order.
15. He has contended that both the Courts below vide order passed at Exh.37 and 46 have discharged the accused No.1 and 2 but considering the FIR, it is clear that the instruments recovered during search and seizure operation were of the accused No.1 and 2 and still the accused No.1 and 2 were discharged and against the said order no appeal was filed and therefore, the present applicants cannot be held guilty. He has contended that both the Courts below failed to appreciate that the applicant - accused No.3 has argued that the amount paid to the mobile company and supervising work done by the accused is not proved by any witness or document. It is also argued that the applicant was neither director nor holding any post in Gagan Green Forest Private Limited nor is there any evidence to prove that the applicant - accused No.3 worked with Gagan Green Forest Private Limited. He has also argued that looking to the evidence of handwriting expert the applicant - accused No.3 was not involved Gagan Green Forest Pvt. Ltd. He was not neither director of Gagan Page 25 of 60 HC-NIC Page 25 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Green Forest Pvt. Ltd. nor working as a Manager or responsible officer in Gagan Green Forest Pvt. Ltd. So, benefit of doubt should be given to the applicant - accused No.3.
16. He has contended that both the Courts below failed to appreciate that the learned Advocate for the applicant - accused No.3 has argued that the amount paid to the mobile company and supervising work done by the accused is not proved by any witness or document. It is also argued that the amount paid to the mobile company and supervising work done by the accused is not proved by oral or documentary evidence. The learned Advocate for the applicant - appellant has also argued that 44 SIM cards were issued by Hutch Company in the name of Network Consultancy Pvt. Ltd. But there is no evidence that the cards were transferred from Network Consultancy Pvt. Ltd. Hutch Company had not provided any form of transfer or any documents regarding transfer of SIM cards. So, it is argued that benefit of doubt should be given to the applicantaccused No.3. It is also argued that the applicantaccused No.3 had provided internet facility only. He is neither a director nor a manager of Gagan Green Forest Private Limited. The applicant - accused No.3 was neither owner nor tenant of place of offence i.e. 9th Floor, Devpath Page 26 of 60 HC-NIC Page 26 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Building. The Investigating Officer had not investigated and had not brought on record any evidence to show that who was owner or occupier of the said premises. At the time of search operation, the Investigating Officer had not collected evidence to show in whose name the electricity connection is given. It is argued that though there were sufficient evidence against the accused No.1 and 2, the Courts below had discharged them and therefore, considering the fact that the applicant - accused No.3 had provided internet services only the benefit of doubt should be given to the applicant - accused No.3. In this case, Mr. Shrinivas Ramamurthi Varanasi has stated that 44 SIM cards were given by Hutch Company to Network Consultancy Private Limited. The Hutch Company had also provided internet services. Thus, the applicantaccused No.3 and the Hutch Company both have provided internet services, but Hutch Company has not been arraigned as accused in the case. Therefore also, the applicantaccused No.3 should be given benefit of doubt and should be acquitted.
17. He has contended that both the Courts below failed to appreciate that the learned Advocate for the applicantaccused No.3 has argued that the address of Gagan Green Forest Pvt. Ltd. Was 17/302, Anandnagar, 100 feet Page 27 of 60 HC-NIC Page 27 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Road, Satellite, Ahmedabad. But in this case, illegal telephone exchange was situated at Devpath Building, Navrangpura, Ahmedabad. There is no any evidence found on record that the SIM cards were transferred from Anandnagar to Navrangpura. However, mere this fact cannot lead to believe that the applicantaccused No.3 is not involved in the offence and he is entitled to get benefit of doubt. The accused No.3 and 4 have not received any monetary benefits.
18. He has contended that both the Courts below failed to appreciate that from the evidence of the telephone subscribers that they only received telephone calls from foreign countries but they did not know from where they received the said calls. It is also argued that first time, the Investigating Officer had located the place of offence and then after he gave key of the said premises to PSI p Udhamsinh. But the Investigating Officer has not shown said Udhamsinh as a witness in the charge sheet. There is no evidence regarding who had clicked photographs of the premises. The only evidence against the applicant - accused No.3 is that during search the Investigating Officer had called the applicant - accused No.3 and asked for IP address of the illegal exchange and the applicant - accused No.3 had Page 28 of 60 HC-NIC Page 28 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT given the said IP address to the Investigating Officer. Except above, no other evidence is found against the applicant - accused No.3.
19. He has contended that with regard to the evidence stating that the applicant - accused No.3 had produced wire cutter to the Investigating Officer, it is argued that the Investigating Officer had not collected such cutter in presence of the two independent witnesses and there is no evidence recorded under section 27 of the Evidence Act for recovery of wire cutter. So, benefit of doubt should be given to the applicant - accused No.3.
20. He has contended that both the Courts below failed to appreciate that it is argued that all the instruments and SIM cards were in the name of the Network Consultancy Private Limited. The applicant - accused No.3 Sharad Varia had not purchased any equipments regarding illegal telephone exchange. There is no evidence to show transfer of equipments from Network Consultancy Pvt. Ltd. to the applicant - accused No.3. The partners of Network Consultancy Pvt. Ltd. Were accused No.1 and 2, who were discharged. It is also argued that the accused No.1 and 2 were also involved in similar type of cases which were filed at Delhi, but the Investigating Officer Page 29 of 60 HC-NIC Page 29 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT had not investigated in that regard nor brought any document on record in that regard. It is argued that though sufficient evidence regarding commission of offences were found against the accused No.1 and 2, they have been discharged and the prosecution had not filed any appeal against the discharge order. Therefore, considering the fact, benefit of doubt should be given to the applicant - accused No.3. The learned Advocate for the applicant - accused No.3 has also argued that the applicant - accused No.3 is shown as owner of equipment and illegal telephone exchange, but there is no evidence regarding ownership or custody thereof, of the applicant - accused No.3. The applicant - accused No.3 is doing business in the name of Blazenet Internet Company, but there is no evidence to show that the applicant - accused No.3 has provided internet services for illegal telephone exchange. It is submitted that the applicant - accused No.3 is owner of Blazenet Internet Company who had entered into an agreement with Bharti Broadband, which is legal and valid and the applicant - accused No.3 had made payment to Bharti Broadband by cheque. There is no illegal activity regarding internet services and the applicant accused No.3 had provided only broadband services to the accused No.1 and 2.
Page 30 of 60HC-NIC Page 30 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT
21. He has contended that both the Courts below failed to appreciate the arguments of the learned Advocate for the applicant - accused No.3 that both the Courts vide order passed at Exh.37 and 46, have discharged the accused No.1 and 2, but considering the FIR, it is clear that the instruments recovered during search and seizure operation were of the accused No.1 and 2 and still the accused No.1 and 2 were discharged and against the said order no appeal was filed and therefore, the applicant - accused No.3 cannot be held guilty. Both the Courts below failed to appreciate that there is no evidence on record to show that he applicant - accused No.3 is the owner of any of the articles seized by the CBI.
22. He has contended that both the Courts below failed to appreciate that the learned Advocate for the applicant - accused No.3 has also argued that it has not come on record as to how much loss was caused to the government and no any witnesses in this regard has been examined by the prosecution. He has contended that both the Courts below have committed a manifest illegality or the findings are perverse and based on misreading of evidence resulting into miscarriage of justice to the applicants. He has contended that there is no evidence regarding ownership or transfer of Page 31 of 60 HC-NIC Page 31 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT the equipments by the applicant No.3.
23. He has contended that PW1 to 4, 7, 9, are the telephone holders They have received telephone calls but the prosecution has not collected any evidence of their telephone connections and even the prosecution has not collected any evidence from the calls received outside India and the prosecution has not established that the aforesaid witnesses received the calls from outside India and even caller ID facilities are not available with the aforesaid witnesses.
Arguments of Applicant Pratik Mehta :
24. He has contended that in the case of applicant Pratik Mehta both the Courts below erred in not considering;
(a) That the handwriting expert, Mr. Vinodkumar Khanna (PW29, Exh. 268) who was the Head of Documents Department, CFSL, CBI had opined about the disputed documents, that in a case in Delhi, he was convicted under Section 129B read with Section 167 and Section 15 read with Section 13 (1) (D) of the Prevention of Corruption Act, 1988; for providing false handwriting opinion to favour the accused persons.
Page 32 of 60HC-NIC Page 32 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT
(b) That there was a change in the Investigation Officer (I.O) and the I.O just took over the investigation documents and was not well versed and did not have any firsthand knowledge of the case on hand.
(c) The witnesses, PW1, PW3, PW4, PW7 and PW9 put up by the prosecution, allegedly having received international calls, have not stated anything about the calls being illegal. Moreover, they have just stated to have received normal calls from their relatives at abroad. Moreover, they did not have a "Caller ID" facility. They never knew about the number from which the call had come.
(d) That the case of the prosecution is that the alleged place of offence was being run on 10th Floor of Devpath Building, but there is nothing on record to support that it was on 10th Floor.
(e) That there is nothing on record about the ownership of 10th Floor of Devpath Building, so it is not clear so as to who is the actual owner of the said place.
Page 33 of 60HC-NIC Page 33 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT
(f) That there is no documentary of oral evidence about the said premises being on rental status. There is nothing to suggest about the landlord not the tenant, still the learned Magistrate has presumed applicant - accused No.4 to be tenant of the said premises.
(g) The witness put forward by the prosecution Mr. Pravin Maniya, PW10, Exh.96; could not clarify about the alleged setup at Devpath Building and related documents, if it was about the 9th or the 10th Floor of Devpath Building.
(h) That the PW12 has not stated so as to who has filled the forms and who had submitted then forms; moreover the opinion of the handwriting expert cannot be relied upon due to his conduct and character, still the Courts below have placed reliance on the same and have wrongly convicted the applicants.
(i) That Both the Courts below failed to appreciate the aspect of international currency conversion in the existing rate of currency, that the Indian Rupees and US Dollars or any other international Page 34 of 60 HC-NIC Page 34 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT currency conversion to Indian Rupees can lead to a figure with decimals.
(j) Moreover the witnesses relied upon by the prosecution did not support the case of the prosecution whereby the prosecution could not prove the case beyond reasonable doubt.
25. He has contended that both the Courts below erred in not considering that at the time of the search of CBI at Devpath Building, the equipments and systems were found to be lying idle and they were not in "Switched on"
position or in working condition. That there is no proof of any electric power supply to be present. That there is no evidence on record that suggests that without electric connection these equipments could work. He has contended that both the Courts below erred in not considering that the offence under Section 420 of the Indian Penal Code, 1860 is not made out as there was no inducement done by the applicant - Pratik Mehta to the complainant and there was no intention of the applicant since the very beginning to cheat the complainant.
26. He has contended that both the Courts below failed to appreciate that there is no oral evidence in the present case to connect Page 35 of 60 HC-NIC Page 35 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT the present applicant for any offence under Section 120 read with Section 420 of the Indian Penal Code, 1860. He has contended that both the Courts below failed to appreciate that there is no oral evidence in the present case to connect the present applicant for any offence under Section 120 read with Section 465 of the Indian Penal Code, 1860. He has contended that both the Courts below erred in convicting the applicants under Section 120B of the Indian Penal Code, 1860, as there is not an iota of evidence to even remotely suggest the ingredients to constitute Section 120B of the Indian Penal Code. There is no direct, indirect, circumstantial or inferential evidence of conspiracy. Therefore also, the judgment and order of the Courts below convicting the applicants is required to be quashed and set aside.
27. He has contended that both the Courts below erred in giving Exhibit to the prosecution documents inspite of the same being not proved as per the provisions of the Evidence Act, 1872. That placing reliance on such documents and having wrongly considered the same have adversely affected the case of the applicant. He has contended that both the Courts below erred in not considering the legal preposition that the applicant had not Page 36 of 60 HC-NIC Page 36 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT to prove its case beyond reasonable doubt but he has to prove his case in light of preponderance of probability.
28. He has contended that both the Courts below erred in convicting the applicants herein for the offences punishable under Section 120B read with Section 420 and 465 of the Indian Penal Code, 1860 and Sections 20 and 25 of the Indian Telegraph Act, 1885. He has contended that both the Courts below erred in convicting the applicants merely on assumption and presumptions, which has resulted into miscarriage of justice. He has contended that That both the Courts below erred in relying upon the authority cited by the prosecution.
29. He has contended that both the Courts below have not properly appreciated that there are inconsistencies, embellishment and exaggerations in the evidence of the prosecution witnesses. He has contended that both the Courts below erred in not taking into consideration the authorities cited by the defence and also the evidence in the defence. He has contended that the inferences drawn, presumptions made and conclusions arrived at by both the Courts below in favour of the prosecution and against the applicants herein is contrary to law, evidence on record and unwarranted.
Page 37 of 60HC-NIC Page 37 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT
30. He has contended that both the Courts below ought to have done in mind the settled legal propositions, as propounded by the Hon'ble Supreme Court in catena of decisions, that it is primarily the duty of prosecution to bring home the guilt of the accused by leading cogent reliable and unimpeachable evidence. It is also at the same time duty of the prosecution to establish these aspects beyond reasonable doubt and they must coexist. If it is not proved by the prosecution, the benefit would be extended to the applicants. He has contended that both the Courts below failed to appreciate that the learned Advocate for the applicantaccused No.4 has mainly challenged the judgment and order on the grounds that the accused No.1 and 2 were the main accused but they have been discharged by the Courts below, the deposition of handwriting expert Mr. Vinodkumar PW29 cannot be believed as he was convicted under Section 120B read with Section 167 and 15 read with Section 13 (1) (D) of the Prevention of Corruption Act for providing false handwriting opinion; the PW 1, PW3, PW4, PW7 and PW9 have stated that they have no "Caller ID" facilities and therefore, they did not know the number from which the call had come; both the Courts below have wrongly held the applicant -
Page 38 of 60HC-NIC Page 38 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT accused No.4 to be the tenant of 10th Floor of Devpath Building, it is submitted that both the Courts below erred in not considering that at the time of search by the CBI officials at Devpath Building, the equipments and systems were found lying idle and not in "Swithc On" mode or in working condition; the offence under Section 420 is not made out, there is no direct or indirect evidence to connect the applicant with offence under Section 120B read with Section 420 and 120B read with Section 465 of the IPC and section 20 and 25 of the Indian Telegraph Act and therefore, it is prayed to quash judgment and order and acquit the applicant accused No.4.
31. He has contended that both the Courts below failed to appreciate that the learned Advocate for the applicant - accused No.4 has argued that the amount paid to the mobile company and supervising work done by the applicant - accused No.4 is not proved by any witness or document. It is also argued that the applicant - accused No.4 was neither director nor holding any post in Gagan Green Forest Private Limited nor is there any evidence to prove that the applicant - accused No.4 worked with Gagan Green Forest Private Limited. He has also argued that considering the cross examination of Page 39 of 60 HC-NIC Page 39 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT handwriting expert PW20 Vinodkumar Ramanlal Khanna, Exh.268, he has accepted in his cross examination that he was convicted in other case for giving wrong opinion about handwriting. Therefore, report of this handwriting expert cannot be believed and the applicantaccused No.4 should be given benefit of doubt.
32. He has contended that both the Courts failed to appreciate the fact that the learned Advocate for the applicantaccused argued that the both the Courts below erred in believing that the amount of Rs.1,15,145/ deposited on 08/11/202 and Rs.1,02,374/ deposited on 17/10/2002 in HDFC Bank, Kasturba Gandhi Branch, New Delhi by somebody, was normal transaction and no abnormality was found in the statement of account and both the Courts also erred in not believing the statement recorded under Section 313 where the applicant - accused No.4 has stated that the said amount was received by way of gift.
33. He has contended that both the Courts failed to appreciate the fact that the learned Advocate for the applicantaccused argued that 44 SIM cards were issued by Hutch Company in the name of Network Consultancy Pvt. Ltd. but there is no evidence that the cards were transferred from Network Page 40 of 60 HC-NIC Page 40 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Consultancy Private Limited to Gagan Green Forest Pvt. Ltd. He has contended that both the courts failed to appreciate that in the deposition of the PW10 Pravinbhai Maniya has categorically stated that he has given one part on rent to Pratikbhai Shah and as per the agreement executed between Pravinbhai and Pratikbhai for the place 907, 9th Floor Devpath Building, CG Road, Ahmedabad only for 9th floor the agreement was recovered by the Investigating Officer which is at Exh.230. The equipments and socalled telephone exchange situated at 10th floor of Devpath Building. Therefore, there is no evidence to establish the version of the prosecution that the said premises was on rent of Pratik Mehta
- the present applicant No.4.
34. He has contended that at the time of premises searched by the CBI at Devpath Building the systems were found in idle condition and they were not in working condition. There is no proof of any electricity power supply and without any electricity connection, it is impossible to suggest that the illegal telephone exchange was going on. He has contended that both the courts below failed to appreciate that there is no evidence against the applicants and prosecution has failed to prove the charge against the applicants but the version of the Page 41 of 60 HC-NIC Page 41 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT prosecution believed by both the Courts below is only on the basis of presumption and assumption.
35. He has contended that the allegation against the accused that they have received the amount of Rs.1,02,374.25 and Rs.1,15,145/ were credited in the accounts of the accused No.4. The said amount was transferred from the Kuoni Travels Private Limited. The said fact disclosed by PW18 the Branch Manager of HDFC Bank and it is a normal transaction. Therefore, it is not established that the accused No.4 has received any illegally monetary benefit. Even Kuoni Travels was not examined by the prosecution. The allegation against the accused No.4 is that he has returned some documents and the prosecution has obtained the opinion of the handwriting experts and on that basis both the Courts below considered the weak piece of evidence regarding opinion of the handwriting experts and only on that opinion without any corroborated evidence, conviction of the applicant No.4 is not justifiable.
36. He has contended that both the Courts below erred in coming to the conclusion that Pravinbhai Kalyanbhai Maniya, Broker has given one portion of the property to Shri Pratik Mehta on rent of Rs.4400/ at Devpath Page 42 of 60 HC-NIC Page 42 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Building. In his cross examination, he has admitted that said the premises in the said Devpath building is not in the name of said Pravinbhai and he has no personal knowledge about the activities which were going on at the said premises.
37. He has contended that Shri Dipeshbhai Bhupatbhai Patadia, Collection Manager, Hutch Company stated that CBI visited their office in 2003 and inquired about certain mobile numbers. At that point of time, the said witness informed to the CBI that said mobiles numbers are allotted in the name of Net Work Consultancy. The said witness in his examinationinchief stated that after obtaining sanction from higher officer of the company, aforesaid facts were given to the CBI and also given information regarding Gagan Green Company. He has also informed that our customers deposited the mobile charges in cash. He has further admitted in his crossexamination that the name of Net Work Consultancy Group was changed and the new name is Gagan Green Forest Private Limited. In this cross examination which is at para 3 page 57, he has categorically stated that in his office customers are sitting in particular place and there is no interaction with the customer and any person can pay the amount of mobile bills of any Page 43 of 60 HC-NIC Page 43 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT mobiles.
38. He has contended that Shri Srinivasan Ramamurthi, Company Secretary and Assistant Vice President (Legal) stated CBI asked the said witness and directed to submit necessary documents of 44 mobile numbers. The said witness on 01.10.2003 vide Exh.102 sent necessary documents to CBI. By Exh.103 details regarding 44 mobile numbers were sent to CBI. By Exh.104 to Exh.140, mobile connection application forms - Net Work Consultancy were sent to CBI. (Page 84 in his cross examination, the said witness stated that there is no evidence regarding transfer of the sim card from the name of Net Work Consultancy to the name of Gagan Green Forest Limited).
39. He has contended that Shri Shekar Iyer S. Krishnamurthi, Branch Manager, IDBI Bank stated that CBI officer visited the branch and inquired the bank account of Pratik Mehta
- present applicant and asked to give slip which was filled up at the time of depositing amount in the said account regarding two payments. Exhibit 155 - contains account opening form, pay slip dated 8.11.2002 and 17.10.2002 were sent to CBI by forwarding letter dated 7.5.2004. Exhibit156 - In HDFC Bank, Kasturba Gandhi Branch, New Delhi, somebody has deposited the amount of Page 44 of 60 HC-NIC Page 44 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Rs.1,15,145/ in the account of Pratik Mehta applicant on 8.11.2002 and the same was credited in the account on 9.11.2002 through cheque No.501979. Exhibit157 - On 17.10.2002 HDFC Bank, Kasturba Gandhi Marg, New Delhi somebody has deposited the amount of Rs.1,02,374/ by cheque No.440367 in the account of present applicant - Pratik Mehta. Same has been credited in his account on 18.10.2002. Exhibit158 - Bank statement of the account No.009104000055369 of Pratik Mehta during the period of 18.10.2002 to 6.5.2004. Exhibit159 - Certificate issued under Bankers Books of Evidence Act, 1891. The said witness in his cross examination has stated that the said transaction is normal transaction and there is no abnormality found in the statement of account.
40. He has contended that Shri Raman Malhotra, Branch Manager, HDFC Bank, Connaught Palace Branch, New Delhi stated in his deposition that CBI officers inquired regarding the Exhibit 156 and 157 and he has categorically informed to the CBI officer on 05.06.2004 that the account holder viz. Kuoni Travels Account No.003221000547 has deposited the amount in the account of Pratik Mehta and he has supplied the relevant documents to the CBI. In his cross examination, he has stated that the above transaction of the cheques are Page 45 of 60 HC-NIC Page 45 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT regular and normal transactions and he has no personal knowledge about the cheque transactions are concerned. Exhibit178 - The cheques deposited in the account of Pratik Mehta were issued from the current in the name of M/s. Kuoni Travel (India) Limited amounting to Rs.1,15,145.67 and Rs.1,02,374.25.
41. He has submitted that both the Courts below erred in convicting the applicants under Section 120B of the Indian Penal Code, 1860, as there is not an iota of evidence to even remotely suggest the ingredients to constitute Section 120B of the Indian Penal Code. There is no direct, indirect, circumstantial or inferential evidence of conspiracy. Therefore also, the judgment and order of the Courts below convicting the applicants is required to be quashed and set aside. Further, both the Courts below erred in convicting the applicants merely on assumption and presumptions, which has resulted into miscarriage of justice.
42. He has submitted that both the Courts below failed to appreciate that there is no oral evidence in the present case to connect A3 for any offence under Section 120 read with Section 420 of the Indian Penal Code, 1860. Further, there is no oral evidence in the present case to connect the present Page 46 of 60 HC-NIC Page 46 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT applicant A3 for any offence under Section 120 read with Section 465 of the Indian Penal Code, 1860. Further, no offence under Section 420 of the Indian Penal Code, 1860 is not made out as there was no inducement done by the applicants to the complainant and there was no intention of the applicants since the very beginning to cheat the complainant. It was stated and submitted that both the Courts below erred in convicting the applicants herein for the offences punishable under Section 120B read with Section 420 and 465 of the Indian Penal Code, 1860 and Sections 20 and 25 of the Indian Telegraph Act, 1885.
43. He has contended that there is no evidence to establish that the applicants - accused persons are doing illegal activities of diverting the foreign calls through their illegal exchanges. Even the equipments of the telephone exchange were seized by the Investigating Agency but the Investigating Agency has not sent the same to FSL and without any evidence, it is not established that the illegal activities were done by the applicants.
44. Heard Mr.R.C.Kodekar, learned counsel appearing for the CBI. He has contended that the CBI has filed reply at Exh.7 and submitted that both the Courts below have rightly convicted the applicants as the case Page 47 of 60 HC-NIC Page 47 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT against them was beyond reasonable doubt. He has drawn attention of the Court to the facts of the case and contended that during the investigation another accused was found by the Investigating Officer and, therefore, investigation was made and in result of that it was found that offence in question has been committed by present applicants. After recording of statement of the witnesses and collecting documents prosecution has filed chargesheet before the trial Court. He has drawn attention to the evidence of 29 witnesses and contended that in the present case Investigating Officer has collected signature and was sent for expert's opinion. As per expert's opinion case of the prosecution was proved beyond reasonable doubt before the learned trial Court and learned trial Court has rightly convicted present both the applicants. He has drawn attention of the Court to Ex.208 and contended that as per the seizure memo Exh.203, instruments used for running illegal telephone exchange were seized from the place of offence. To fulfill the goal of running illegal telephone exchange and thereby cheating the Government the applicants have established Network Consultancy Group and obtained mobile phone connections and internet broadband connection. They have imported cell sockets, routers, switches etc. Page 48 of 60 HC-NIC Page 48 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT obtained mobile phone equipments from local markets to establish VOIP set up and then mobile phone connections were obtained from Cell Force of M/s. Fascel Ltd. by falsely mentioning the purpose of use of mobile connections. Internet broadband connection was taken from M/s. Blazenet Ltd. and the applicants entered into a contract with M/s. Hercules Satellite Communication. In order to establish a VOIP set, SIM cards obtained from Cell Force in the name of M/s. Network Equipments were kept in cell sockets which were imported in the name of Network Consultancy and were inserted into mobile equipments. The overseas partners were sending the share of the accused persons in the name of Network Consultancy Group through wire transfer and deposited in its accounts with HDFC Bank, Bodakdev. As per the bank statement, an amount of Rs.47,86,424.28 was remitted in the said account during 22/01/2002 to 10/10/2002. Moreover, the prosecution has examined several witnesses who have used the said services provided by the accused.
45. He has further contended that the applicants have not followed the guidelines for getting license for international long distance service. Moreover, the applicants have also breached the guidelines provided Page 49 of 60 HC-NIC Page 49 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT for Internet Service Providers. Thus, it is proved by the prosecution that type of set up installed and operated by the applicants was not permitted by law. M/s. Network Consultancy Group and M/s. Gagan Green Forests Pvt. Ltd. were not licensed to operate ISP as well as provide internet telephone services. Lastly he has contended that the above facts and evidences were clearly proved by the prosecution before both the Courts below and therefore, both the Courts below have rightly convicted the accused.
46. I have gone through the impugned judgment and orders passed by the learned both the Courts below and oral as well as documentary evidence produced on the record. I have also considered the submissions advanced by the learned advocates for the respective parties.
47. This court is conscious of the catena of judgments of the Hon'ble Apex Court pertaining to a criminal revision wherein two courts of law have written a concurrent finding.
1)In the case of Chandmal vs. State of Rajasthan, reported in (1976) 1 SCC 621, the Hon'ble Supreme Court has observed in para31 that ordinarily, as a matter Page 50 of 60 HC-NIC Page 50 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT of practice, this Court does not go behind a concurrent finding of fact unless such finding is clearly unreasonable or manifestly erroneous, or illegal. ... ..."
2)In the case of A. Subair vs. State of Kerala, reported in (2009) 6 SCC 587, the Hon'ble Supreme Court in Para31 has observed that when the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is further observed that, the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.
3) In the case of Gurcharan Singh vs. State of Punjab, reported in (2017) 1 433, the Hon'ble Apex Court in Para11 has observed that, though in the teeth Page 51 of 60 HC-NIC Page 51 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT of the sequential findings of guilt of the courts below, normally, reappraisal of the evidence is otherwise uncalled for, we are impelled to embark upon that exercise, having regard to the rival assertions in the unique facts and circumstances of the case. ... ...
48. This court is conscious of the fact that exercise of its power u/S. 397 read with Section 401 of the Code of Criminal Procedure, 1973, being discretionary, it has to be exercised judiciously and not arbitrarily or lightly. Judicial discretion, as has often been said, means a discretion which is informed by tradition, methodised by analogy and disciplined by system. This Court is empowered to satisfy itself as to the correctness legality or propriety of any finding, sentence or order recorded or passed by any inferior court situate within the limits of its jurisdiction and as to the regularity of any proceeding of such inferior court. The Hon'ble Apex Court in catena of judgments has held that in the event of grave miscarriage of justice, interference is called for.
49. This Court is conscious of the fact that it cannot disturb the concurrent findings of the courts below if the same are based on legal Page 52 of 60 HC-NIC Page 52 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT evidence merely because another view is possible. Thus, keeping in mind, the well established legal principles in giving anxious consideration to the concurrent findings of two courts below, this Court has assessed the evidence in this case very carefully, in spite of the same it is unable to concur with the findings of the courts below. Both the courts below have deviated from the rule of prudence while appreciating the evidence led by the prosecution.
50. This Court finds that both courts below have committed an error while not appreciating the evidence on record from which it is crystal clear that the present applicants had not played any role in the commission of the offence.
51. Both the Courts below failed to appreciate that one of the cardinal principles of our system of administration of justice in criminal cases is that a person arraigned as an accused is presumed to be innocent unless that presumption is rebutted by the prosecution by production of evidence as may show him to be guilty of the offence, with which he is charged.
52. The onus and burden of proving the guilt of the accused is upon the prosecution and unless it relieves itself of the burden, Page 53 of 60 HC-NIC Page 53 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT the courts cannot record the finding of the guilt of the accused.
53. Thus, going by the above said aspect in this case the prosecution has miserably failed to discharge its duty in order to prove the case beyond reasonable doubt against the accused and, therefore, no conviction can be based merely on assumption and presumptions.
54. The courts below committed a glaring error in convicting the revisionists in the following manner.
(i) Both the Courts have erred in ignoring the order passed at Exh.37 and 46 of C.C. No. 142 of 2004 wherein A1 & A2 were discharged and this order has attained as finality as the same has not been challenged. Now the FIR, if believed to be true and correct, it emerges that during the alleged search and seizure operation the instruments recovered were belonging to A1 & A2.
(ii) The witnesses relied upon by the prosecution did not support the case of the prosecution whereby the prosecution could not prove the case beyond reasonable doubt. In fact there is no evidence to connect both the applicants with the offences and they are convicted only on assumption and Page 54 of 60 HC-NIC Page 54 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT presumptions.
(iii) PW1 to 4, 7, 9 are the telephone holders They have received telephone calls but the prosecution has not collected any evidence of their telephone connections and even the prosecution has not collected any evidence from the calls received outside India and the prosecution has not established that the aforesaid witnesses received the calls from outside India and even caller ID facilities are not available with the aforesaid witnesses.
55. Both the Courts below failed to appreciate that conviction cannot be based solely relying upon the allegations made in the FIR and that too on the evidence of Investigating Officers who were admittedly not the eye witnesses. The only aspect coming on record is that A3 had merely provided internet facility. The perverse findings based on which the lower courts have given concurrent finding of conviction against A3 are enumerated below:
(i) The amount paid to the mobile company and supervising work done by A3. 44 SIM cards issued by Hutch Company in the name of Network Consultancy Pvt. Ltd. and no evidence has been against the revisionist to suggest Page 55 of 60 HC-NIC Page 55 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT that any illegal activity was done with those SIM cards or that there was any connection with the said Network Consultancy. Solely for on the ground of providing internet facility, no criminality can be inferred. Even Hutch Company had provided internet facility and is not even arraigned as an accused. A3 was neither director nor holding any post in Gagan Green Forest Private Limited nor has he worked with Gagan Green Forest Private Limited. A3 was neither owner nor tenant of place of offence i.e. 9th Floor, Devpath Building. No evidence is on record to show as to who was owner or occupier of the said premises. There is no evidence to show as to in whose name the electricity connection was given. Even otherwise, the address of Gagan Green Forest Pvt. Ltd. was 17/302, Anandnagar, 100 feet Road, Satellite, Ahmedabad. In the present case, allegation was that illegal telephone exchange was situated at Devpath Building, Navrangpura, Ahmedabad. However, no evidence has been brought that the SIM cards were transferred from Anandnagar to Navrangpura.
56. Both the Courts below failed to take into consideration their own finding that no sufficient natural features were observed by the handwriting expert (PW29/Exh. 268) in his report below Exh.260 and PW29 opined Page 56 of 60 HC-NIC Page 56 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT that the samples attributed to A4 for them to come to a conclusion that the questioned handwriting specimen was written by A4 and in that view of the matter coupled with the fact that no other oral or documentary evidence was led by the prosecution, the order of conviction qua A4 is clearly unsustainable. Even otherwise, nothing incriminating has been led against A4. Therefore, particularly when PW12 has not stated that who has filled the forms and who had submitted those forms, the absence of any evidence of the handwriting expert becomes fatal for the prosecution case. For example, even though the alleged place of offence was on 10th Floor of Devpath Building, there is nothing on record to even allege that A4 had any connection with the said 10th Floor. Even otherwise, there is no evidence on record to suggest that the equipments alleged to have been recovered were in conscious possession of either of the Revisionists, more particularly, when the prosecution has failed to establish any cogent evidence that these equipments were in working condition at the time of alleged seizure. The prosecution has also failed to establish that at the relevant period of time, the 10th floor at Devpath Building had working supply of electricity. Lastly, the argument canvassed by respondent that the NetWork Consultancy was renamed as Page 57 of 60 HC-NIC Page 57 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT Gagan Green Forest Pvt. Ltd. and taken over by present revisionist is not borne out from any oral or documentary evidence led by the prosecution. It requires reiteration that Network Consultancy was the partnership form of A1 and A2 who have been discharged by trial court and the order remains unchallenged till date. In so far as the allegation of transfer of money in the account of A4 is concerned, in absence of any incrimination evidence qua the present offence along, such transfers cannot be considered unnatural or suspicious. Moreover, the transferring party was not even examined by the prosecution. Further, the allegation that 44 SIM cards issued by Hutch Company in the name of Network Consultancy Pvt. Ltd. cannot incriminate A4 as no evidence has been against the revisionist to suggest that any illegal activity was done with those SIM cards or that there was any connection with the said Network Consultancy.
57. Both the Courts below ought to have kept in mind, the settled legal propositions, as propounded by the Hon'ble Supreme Court in catena of decisions, that it is primarily the duty of prosecution to bring home the guilt of the accused by leading cogent reliable and unimpeachable evidence. At the same time, it is also the duty of the prosecution to Page 58 of 60 HC-NIC Page 58 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT establish these aspects beyond reasonable doubt and they must coexist. If it is not proved by the prosecution, the benefit would be extended to the applicants.
58. In the result, this Court is of the opinion that the learned Sessions Judge has committed grave error in convicting and sentencing the accused for the alleged offence. This Court is not in agreement with the impugned judgment and order.
59. Hence, in view of the abovementioned facts, circumstances and the nature of glaring illegalities, perversities in the manner in which both the lower courts have considered the material on record along with adverse inference of those material and witnesses not examined, the present revisions are required to be allowed. The judgment and order dated 16/01/2015 passed by the learned Additional Chief Judicial Magistrate, Court No.2, Ahmedabad in CBI Criminal Case No.142 of 2004 below exhibit278 along with the judgment and order dated 15/03/2017 passed by the learned Special Judge CBI, Court No.2, Ahmedabad in the CBI Criminal Appeal No.1 of 2015 and No.2 of 2015 are hereby quashed and set aside. The revisionists are ordered to be acquitted from the alleged offence. the revisionistsaccused persons are on bail, hence, their bail bonds stand cancelled. Record and proceedings are Page 59 of 60 HC-NIC Page 59 of 60 Created On Fri May 05 00:21:37 IST 2017 R/CR.RA/243/2017 CAV JUDGMENT ordered to be sent back to the concerned trial Court forthwith.
(Z.K.SAIYED, J.) KKS Page 60 of 60 HC-NIC Page 60 of 60 Created On Fri May 05 00:21:37 IST 2017