Delhi District Court
(In Re:- Cbi vs . D.K. Bansal & Others) on 25 August, 2012
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC NO. 20/2010
ID No. 02401R0073272001
(In Re:- CBI Vs. D.K. Bansal & others)
CBI
Versus
Harnam Dass ..Accused No. 4
Satish Kumar ...Accused No. 5
Kaushal Kumar ... Accused No. 6
Raj Kishan ... Accused No. 7
Case arising out of:
FIR No. RC-42(A)/1993/CBI/ACB/ND
Case is more than 15 years old
Date of FIR : 23.06.1993
Date of Institution : 21.12.1994
Date of Final Arguments : 18.08.2012
Date of Judgment : 25.08.2012
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JUDGMENT:
1 Chargesheet in the present case had been filed against 8 accused persons. At the time of consideration of charge, A-8 Vijender Singh was discharged. Subsequently, A-1 Dinesh Kumar Bansal, A-2 Rakesh Kumar Bansal & A-3 Prabhat Kumar pleaded guilty to the charges framed against them and on basis of their plea of guilt, they were convicted and sentenced vide order dated 03.06.2003 passed by my Ld. Predecessor. As such, trial proceeded against four accused persons i.e. A-4 to A-7. 2 Succinctly stated, case of prosecution was to the effect that the accused persons had conspired together to by-pass the Meter readings at Shakti Nagar Telephone Exchange for making unauthorized international calls by miss-using ISD / STD facilities by way of using the telephone instruments for telephonic conversation without paying bill for making the unauthorized international calls. The accused were alleged to have mis-used telephone connections installed at premises No. 49-A, Pocket-D, Ashok Vihar to make unauthorized international calls and thereby causing wrongful loss to the Government and wrongful pecuniary advantage to A-1 to A-3 who were private persons and A-4 to A-8 who were employees of MTNL and were public servants.
3 After hearing arguments on point of charge, my Ld. Predecessor vide order dated 03.06.2003 was pleased to discharge A-8 Vijender Singh and was further pleased to frame charges against the accused persons inter-alia for having committed offences punishable U/s. 120 B IPC r/w. 13 (2) r/w. 13 (1) (d) of the PC Act and U/s. 27 of Indian Telegraph Act. Accused persons in respect of whom the present judgment is being passed were also separately charged with for the substantive offences punishable U/s. 13 (2) r/w. 13 (1) (d) of PC Act and also U/s. 27 of the Indian Telegraph Act.
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4 During course of trial, prosecution examined as many as
28 witnesses to prove its case against the accused persons. After statements of accuseds were recorded U/s. 313 Cr.P.C., three witnesses in defence were examined.
5 PW-1 Shri Jagdish Chander claimed having accompanied CBI team for search in Ashok Vihar area on 24.06.1993. He claimed that when door of the house was not opened on being knocked, it was broken forcibly and some accused persons were found there. It was claimed that some telephone instruments were also found installed therein. A call was reportedly made to some foreign country from there. The search and seizure proceedings were claimed to have been recorded in Memo Ex.PW-1/A. Witness identified his signature on it. Site Plan Ex.PW-1/B was also claimed to have been prepared at that time. 6 PW-2 Shri R.K. Saini proved his complaint Ex.PW-2/A lodged with S.P., CBI on 23.06.1993. He claimed that he did not remember from where he had got the information which formed basis of the complaint.
During course of cross-examination, witness claimed that the preliminary enquiry report submitted to the Director must be on the File. He denied the suggestion of having drafted and prepared the complaint on direction and dictation of CBI. 7 PW-3 Shri Harbhajan Singh reiterated the facts stated by PW-1. He claimed that he had made a call to Canada and talked to his 'Aunty' from the telephone installed in the premises in Ashok Vihar which revealed that ISD facility was available there. He identified his signature on Ex.PW-1/B. 8 PW-4 Shri K.L. Mahajan claimed that on 24.06.1993, he had accompanied CBI team to Shakti Nagar Telephone Exchange alongwith his colleague Shri Kamal Kumar. He claimed that they had been taken to some room where lines were connected and from CC No. 20/2010 Page3 of 42 there he was taken to a house in Ashok Vihar where four or five telephones were installed from where he was made to talk over a telephone and the talk matured. He further claimed having talked to his colleague Shri Kamal Kumar in Shakti Nagar Telephone Exchange and that thereafter, they all returned back to the Exchange. Witness identified his signature on Memo Ex.PW-4/A, which he claimed having signed after going through its contents. However, witness claimed that he could not identify any of the accused present in Court to be the person present in Telephone Exchange on that day.
After seeking permission from the Court, the witness was cross-examined by ld. PP for CBI and during course of his cross- examination, he claimed that he did not know if Dinesh Kumar was also brought to the Exchange in custody of CBI. He claimed that he did not know if the said Dinesh Kumar had identified Shri A.K. Singh in his room. He however admitted that enquiries were made from one Mr. Chabbra in the Telephone Exchange to ascertain if any JTO by the name of Shri A.K. Singh was employed in the Exchange to which Chabbra claimed that no such employee was there. Witness also admitted that photographs of employees of the Telephone Exchange were seen, but he claimed, that he did not know if Dinesh Kumar pointed out towards photograph of JTO Harnam Dass. Witness admitted that Harnam Dass and Mr. Chabbra were summoned by DGM Shri Y. P. Kataria in his Office where Dinesh Kumar pointed out Harnam Dass saying that he was A.K. Singh. Witness claimed that he did not know if Dinesh had informed in his presence about his (Dinesh) paying Rs.12,500/- to Harnam Dass @ A.K. Singh for two unauthorized ISD direct telephone connections. He further denied about Harnam Dass having made any disclosure statement. Infact, the witness was confronted with much of the Memo Ex.PW-4/A. Witness claimed that although all the proceedings CC No. 20/2010 Page4 of 42 mentioned in Ex.PW-4/A took place in his presence, as he had no technical knowledge, he could not depose about proceedings of technical nature. He denied the suggestion that he was deposing falsely or was deliberately not identifying Harnam Dass and Satish Kumar.
During course of cross-examination by ld. Counsel for the accused, witness stated that he did not know as to from which number call was made by him to the Exchange and what was the called number. He claimed that the proceedings in Shakti Nagar Telephone Exchange were not photographed and he did not know who had brought the employees register. He could not even say if he was present in the same room or in another room. He denied the suggestion of having merely signed a document in CBI Office. 9 PW-5 Shri Kamal Kumar was the other independent witness who had joined the CBI raid team on 24.06.1993. Although, the witness claimed having accompanied the CBI team to Shakti Nagar Telephone Exchange, he claimed that he did not remember if anybody was in custody of CBI. He further claimed that he had no technical knowledge regarding working of Telephone Exchange and all the technical proceedings were conducted by the CBI team and MTNL officials in his presence and that of K.L. Mahajan. The proceedings were claimed to have been reduced into writing at the spot vide Memo Ex.PW-4/A on which witness identified his signature having signed it acknowledging the contents to be correct. He claimed that the said Memo had also been explained to them. Witess further claimed that some team members alongwith Mr. Mahajan left the Exchange and thereafter, a telephonic conversation was arranged between him and Mahajan from some other place and he identified voice of Shri Mahajan. Witness claimed that he did not know anything else and could not understand the technical procedure.
CC No. 20/2010 Page5 of 42 After seeking permission from the Court, witness was cross-examined by ld. PP for CBI and during course of his such cross-examination, witness claimed that he did not remember if one Dinesh Kumar was present in custody with CBI team. Witness claimed that he did not know if the said person had identified one A.K. Singh. (As per the evidence sheet recorded by ld. Predecessor, the witness was confronted with portion A to A, B to B & C to C where these facts were recorded and the witness was read over the entire Memo Ex.PW-4/A but he declined to accept the confronted portion 'D to D' TO 'N to N'). Witness denied the suggestion that he was deposing falsely on the confronted portions of Ex.PW-4/A to help the accused persons. He also failed to identify Harnam Dass and Satish Chand out of the four accused present in Court. He denied the suggestion that he was deliberately not identifying them.
During course of cross-examination by ld. Counsel for the accuseds, witness admitted that he did not go through the complaint and did not know from which number call was made by him to the Exchange and what was the called number. He further stated that enquiry from Dinesh Kumar about A.K. Singh was made in Shakti Nagar Exchange. He did not know as to who had brought the employees register nor could he say if he was present in the same room or in another room. He denied the suggestion that he was not present during course of proceedings or had merely signed the documents in CBI Office subsequently.
10 PW-6 Shri A.K. Sharma was MTNL employee who claimed having joined CBI raid at Ashok Vihar on 24.06.1993. He claimed having gone to House No. 49-A, where some drop line of Telephones and PBX Wooden Box were observed. He claimed that numbers were checked by dialing the numbers and the raiding staff knew the numbers and that the MTNL staff was merely asked to verify the same. He claimed that the team had interacted with Shri CC No. 20/2010 Page6 of 42 Y.P. Chopra (AE) deputed in the Exchange and it was verified from him about the telephone numbers and tax junction functioning in the premises. The proceedings were claimed to have been recorded in Ex.PW-1/A whereupon witness identified his signature. Articles mentioned therein were also claimed to have been seized. Witness identified his signature on the Lay out of premises Ex.PW-1/B. During course of cross-examination by ld. Counsel for the accuseds, witness claimed that he had not received any written instructions from CBI or his Sr. Officer to join the raid. He claimed that perhaps he had been asked to join the proceedings by Vigilance Officer R.K. Saini. He claimed that he had received the telephonic message perhaps a day in advance but could not say if the information was received by him at his residence or in his Office. Witness admitted that he had not read any complaint in CBI Office. He denied the suggestion that he had not joined any raid or was deposing falsely at instance of CBI. He denied the suggestion of having signed Ex.PW-1/A in CBI Office.
11 PW-7 Shri Y.P. Chopra claimed having visited Shakti Nagar Telephone Exchange on 24.06.1993 alongwith CBI team. He claimed that proceedings were conducted in the Switch Room, MDF and outdoor and claimed that a report must have been prepared in that regard. Witness identified his signature on the Memo Ex.PW-4/A and claimed having signed it as proceedings conducted were incorporated therein.
During cross-examination by ld. Counsel for the accuseds, witness claimed that he had been directed by Director Vigilance to go to CBI Office. He could not tell as to in how many case he had been joined by CBI as a witness. He could not say if the said number was 5 - 10. He denied the suggestion that he was a witness of choice and was called by CBI by name. He specifically claimed that he had not personally read the Memo Ex.PW-4/A as the CC No. 20/2010 Page7 of 42 person who was writing it was simultaneously reading it loudly. He denied the suggestion of having signed it merely at the instance of CBI in CBI Office.
12 PW-8 Shri B.K. Jain claimed that on 24.06.1993, a surprise check was conducted by officials of MTNL alongwith CBI and independent witnesses at premises No. 49-A, Pocket-D, Ashok Vihar, Phase-III, New Delhi. He claimed that one Mr. Mittal and one Mr. Gupta met them there and they also saw five drop wires / telephone lines going to the premises, and out of them, three lines pertaining to Shakti Nagar Telephone Exchange Area were found working and on two lines, two TAX (Trunk Automatic Exchange) Junctions were found working. He stated that it provided calls to be made without dialing '00' and that this facility was allowed only in MTNL Office / Exchange and not in private premises. He claimed that one of the independent witnesses dialed a Canada number to know about availability of TAX Junction and the call matured. One party was also claimed to be present in the Switch Room of Shakti Nagar Telephone Exchange to confirm availability of TAX Junction. Witness claimed that a private TAX Junction might be working in private premises in connivance with MTNL staff. He further claimed that the entire proceedings were recorded in Inspection cum Seizure Memo Ex.PW-1/A and the witness identified his signature thereupon. He further claimed that articles mentioned at Srl. Nos. 1 to 30 on the Memo had also been seized. Site Plan was also claimed to have been prepared and the witness identified his signature on the same.
During course of cross-examination, witness could not tell the complete names of Mr. Mittal and Mr. Gupta. He denied that none of them was found present in the premises. He claimed that he was orally directed by his Boss Shri Duggal to accompany him by giving him a telephone call at his premises around 5.00 A.M. He claimed that there were two independent witnesses, four MTNL CC No. 20/2010 Page8 of 42 officials and two CBI officials in the team. He denied the suggestion that he had not gone to the mentioned address or had not joined the Inspection team. He further denied the suggestion that he had not signed Ex.PW-1/A in the premises where the raid was conducted or had signed it in CBI Office. The seized articles were claimed to have been removed by the technical persons including himself. He claimed that the articles were not found fixed on the wall but were found on floor and no tools had been used to remove the same. He did not recollect as to how the seized articles were kept by CBI or if the same were tied in one place in something. He also did not remember whether or not the spot was got photographed. He denied the suggestion that no articles were seized or removed from the premises in his presence or that he was deposing falsely. 13 PW-9 Shri H.B. Wadhwa proved his Sanction Order Ex.PW-9/A whereby sanction was accorded for prosecution of Harnam Dass, Satish Kumar, Kaushal Kumar, Raj Kishan and Vijender.
During course of cross-examination by ld. Counsels for the accuseds, witness claimed that he did not give personal hearing to the accused persons as it was not required. He further claimed that he did not receive any draft Sanction Order from CBI. He denied the suggestion that the Sanction Order Ex.PW-9/A was verbatum reproduction of the draft sanction order sent by CBI or that he had granted the sanction mechanically without application of mind.
14 PW-10 Shri M.L. Chabbara claimed that on 24.06.1993 he was posted as A.E. in Shakti Nagar Telephone Exchange and was sitting in his Office, when CBI team came there alongwith one person and enquired about one other person who was not working in their Office. He claimed that CBI Officer requested photographs of staff working in the Exchange from him, being the Incharge.
CC No. 20/2010 Page9 of 42 Photographs were claimed to have been arranged and the person who had come with CBI identified photograph of Harnam Singh, JTO. Witness claimed that due to lapse of time he did not remember what happened thereafter but some proceedings were done on that day. He identified his signature on diagram Ex.PW-10/A and claimed that it was already prepared and only marking of circuit was done by him. He also identified his signature on the Memo Ex.PW-4/A. Although, he claimed it to have been prepared in his presence, witness claimed that presently he did not remember contents of the Memo. He also did not recollect if Harnam Dass disclosed anything in his presence.
After seeking permission from the Court, ld. PP for CBI cross-examined the witness and during course of cross-examination, witness claimed that he did not remember if his statement was recorded by CBI. He also did not remember if after his identification, Harnam Dass identified his accomplices Satish Kumar, Kaushal Kumar, Raj Kishan and Vijender Singh. He claimed that it might be possible that contents of the Memo were correct as he had signed the same as a witness. He admitted that Harnam Dass had admitted in his presence that he was taking money from the private party which was shared by other JTOs and Wiremen. Witness could not tell the exact amount told by Harnam Dass. He also did not remember if the person who came there was Dinesh Kumar. He admitted that Harnam Dass traced the manner in which lines had been diverted by him and his accomplices and thereafter, he (witness) marked the diagram. He also admitted that STD/ISD facility was being mis-used on the diverted lines. The witness identified the accused Harnam Dass, Kaushal Kumar and Satish Kumar.
During course of cross-examination by ld. Counsel for the accused, witness claimed that his statement was not recorded to the effect that Register was brought and Harnam Dass was identified CC No. 20/2010 Page10 of 42 in the Exchange. He claimed that the Register was obtained from the Record Room through Clerk. He denied the suggestion that Harnam Dass was not identified in his presence. However, he claimed that the photograph was not identified in his presence. He claimed that some public persons who accompanied CBI Officers had informed that he was giving a particular amount of money. He admitted that there was no talk in his presence between that persons and the accused persons as to how much was being paid or received. He admitted that Harnam Dass was asked to trace the diversion as he was on duty at that time. He denied the suggestion of having been signed blank papers or that no admission was made by Harnam Dass in his presence regarding his (Harnam Dass) involvement. He further denied the suggestion that Satish Kumar and Kaushal Kumar were not named or identified by accused Harnam Dass. 15 PW-11 Shri B.L. Challo deposed about files and commercial files of telephone numbers. He had nothing else to state.
16 PW-12 Shri Yash Pal Kataria claimed that on 24.06.1993 while he was posted as DGM (Maintenance) Shakti Nagar Telephone Exchange, some CBI officials came alongwith some private persons as they wanted to search the Exchange for tapping some telephone calls. He claimed that the private persons who were with CBI officials disclosed certain names on basis of which photograph in record of the Exchange were checked by CBI officials. He stated that MDF of the Exchange was also checked by CBI officials with his help and that some extra jumpers were found in the Exchange which were diverted to the beneficiaries. He claimed that some persons were identified by the person who was with CBI officials and that on basis of that operation 3 or 4 employees were suspended. He however could not identify those employees and claimed that he could not say if the four accused persons present in CC No. 20/2010 Page11 of 42 Court were the same employees. Some written work were also claimed to have been done by CBI in respect of searches conducted.
During course of cross-examination by ld. Counsels for the accuseds, witness claimed that at that time he was senior most Officer in the Office. He claimed that he did not see any search warrant with CBI, but claimed that they were accompanied by officials of Vigilance team of the Office. He further stated that he was not given any direction in written regarding the search nor had he authorized them to conduct the search. He denied the suggestion that he was not present at the time of search.
17 PW-13 Shri Dinesh Singh Saxena claimed that telephone No. 7110126 was temporary installed on medical grounds in the name of D.K. Bansal and had STD facility. He also deposed about details of installation of the other telephone Nos. i.e. 7110167, 7110232, 7248105 & 7127785.
18 PW-14 Shri S.C. Duggal claimed that on 24.06.1993 he was posted as A.E. Vigilance, MTNL and on that day he reported in CBI Office alongwith his colleague. He claimed having participated in the raid conducted on 49-D Pocket-III, Ashok Vihar and deposed about what he saw therein. He claimed that out of the telephones found there two were having current without dial tone and ISD calls could be made from the same without dialing '0'. He claimed that on basis thereof, it was concluded that both the telephones were having direct junction terminator. Proceedings were claimed to have been reduced into writings in Memo Ex.PW-1/A and the articles seized. Witness identified his signature on the Memo. He also identified the articles lying in the box in Court and claimed that the same had been seized from the premises in his presence vide Memo Ex.PW-1/A. During course of cross-examination by ld. Counsel for the accused, witness claimed having received oral instructions from his senior Officers to attend the CBI Office. He claimed that there CC No. 20/2010 Page12 of 42 were two independent witnesses with the CBI team during the raid. He claimed that he did not know whether or not CBI officials had joined any neigbours in the proceedings. He further claimed having entered ground floor of the premises in Ashok Vihar. He claimed that he did not remember if any photograph of the scene of the proceedings had been taken or not. He claimed that he did not orally remember the telephone number which had been dialed but claimed that it was recorded in the proceedings. He claimed that he did not dial the number himself and had not seen the telephone line connected with the junction line nor had he talked to the called party. He denied the suggestion that all documents were prepared in Office of CBI or that he was not present at the spot or that nothing was seized from the spot.
19 PW-15 claimed that in the year 1992, one Shri Rakesh Kumar came to him for getting a property on rent and he arranged premises No. 49-A Pocket-D Phase-III, Ashok vihar on rent for him from Shri R.C. Gupta.
20 PW-16 Ram Bal Mahto claimed that on 16.09.1993, specimen writing of D.K. Bansal, Rakesh Kumar and Prabhat Kumar were taken in his presence in CBI Office. He identified his signatures on said sheet Ex.PW-16/A-1 to 11.
21 Cited witnesses Shri Rajender Singh and Purshottam Dass were given up by ld. Sr. PP as being unnecessary on 19.09.2005.
22 PW-15 Shri Mohan Lal Sharma claimed having handed over duplicate bills of the five telephone connections to the CBI vide Memo Ex.PW-17/A on 22.09.1993 and identified his signature on the Memo. He claimed that the bills Ex.PW-17/B-1 to B-13 were prepared from the original records.
23 PW-18 Shri Shiv Lal Verma claimed that ISD/STD details of bill of telephone No. 7248105 were not given in the duplicate bill.
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24 PW-19 Shri Mohan Lal claimed that on 19.11.993 on
direction of his superiors, he had gone to CBI Office where specimen writings of some persons were taken. Witnesses identified his signature on the sheets Ex.PW-19/A-1 to A-15.
25 PW-20 Shri M.B. Mathur claimed having gone to CBI Office on 10.12.1993 and claimed that specimen writings were given by some persons in his presence. He identified his signatures on the said sheets Ex.PW-20/A-1 to 15.
26 PW-21 Dr. Vaid was the Handwriting Expert who proved the questioned documents and the standard documents and his reports Ex.PW-21/A to M. During course of cross-examination, witness denied the suggestion of having not examined the documents independently and about having given his opinion under pressure of CBI. 27 PW-22 Inspector R.S. Khattri claimed that on 24.06.1993 while he was posted in CBI, in pursuance to disclosure made by accused D.K. Bansal, he alongwith Inspector R.K. Saini and accused D.K. Bansal had gone to Shakti Nagar Telephone Exchange where another accused Harnam Dass @ A.K. Singh was apprehended from the exchange on 24.06.1993 in presence of Sr. Officers of Telephone Exchange and the other CBI team already present there. Disclosure statement of Harnam Dass was claimed to have been recorded and on basis thereof, Switch Room situated on second floor checked. Thereafter, the witness reiterated facts mentioned in the disclosure statement cum Pointing Out Memo in respect of Harnam Dass and Satish Kumar.
During course of cross-examination by ld. Counsel for the accused, witness claimed that he did not make any entry in D.D. Register before departing the CBI Office for search nor had he signed any document before leaving the CBI Office. He claimed that first of all they had gone to Ashok Vihar. He claimed that he did not CC No. 20/2010 Page14 of 42 enter the house but had remained standing outside. He further claimed that at about 11.30 A.M. other CBI Officers came out of the house alongwith Dinesh Kumar and then he alongwith Inspector R.K. Saini took Dinesh to Shakti Nagar Telephone Exchange alongwith copy of his disclosure statement. He claimed that on reaching the Exchange they were told by accused Dinesh that A.K. Singh was not found available in the Exchange Switch Room. He denied the suggestion that they were shown one person viz. A.K. Singh in the Switch Room of the Telephone Exchange. He denied the suggestion that A.K. Singh was found present there. Witness admitted that no photographs of the wires and junctions and loops connected to the telephone in the Switch Room were taken. He denied the suggestion that no diagram was prepared in the Switch Room or that no proceedings were conducted there. He also denied the suggestion that no disclosure statement of any of the accused persons was recorded by any Officer. Witness further claimed that he did not remember the telephone number which was dialed from the Switch Room for checking the connections. He denied the suggestion that no telephone call had been made in his presence. He denied the suggestion that did not join the search team or was deposing falsely. 28 PW-23 Shri K.S. Joshi claimed to be a member of the CBI search team that had visited House No. 49-A, Ashok Vihar on 24.06.1993. He claimed that when they reached the spot, they found that the occupants were hurriedly collecting record and instruments and dismantling the telephone lines and connected instruments. He claimed that the team entered by forcibly opening the door and apprehended the persons present there. Five telephone lines were claimed to be in use in the said house. A test call was claimed to have been conducted by the Panch witness Shri Harbhajan Singh to Canada on No. 15146852106 without applying the international code '00'. He claimed that the call matured. He claimed that a part of the CC No. 20/2010 Page15 of 42 technical team of MTNL was sent to Shakti Nagar Telephone Exchange, who after dialing from the Exchange confirmed that all lines in the house were in use through Shakti Nagar Telephone Exchange. He claimed that all the lines were found to be in working order. It was further claimed that the telephone lines were terminating in a locally made wooden box and sockets were used for connecting prospective clients by conferencing system for making ISD and STD calls. All the relevant records and instruments were claimed to have been seized from the house. Proceedings were claimed to have been recorded in Memo Ex.PW-1/A. Witness identified his signature on the same. He further claimed that all the seized articles and documents shown to him in Court were same which had been seized during search vide Memo Ex.PW-1/A. During course of cross-examination, witness claimed that he was called by the Sr. Officers on 23.06.1993 to join CBI Office on 24.06.1993 before 6.00 A.M. H did not remember number of members of the raiding party. However, he claimed that besides himself, Inspector Kaul, two independent witnesses, CBI staff and MTNL technical staff were members of the search party. He did not recollect if I.O. had called any public person from the locality at the time of conducting search. He claimed that no neighbours collected when the team forcefully open the door. He denied the suggestion that he did not join the raid / search at the aforesaid house or was deposing falsely.
29 PW-24 S.K. Peshin claimed that on 24.6.93 while he was posted as Inspector in CBI, ACB, New Delhi, he attended the office at 6.30 AM for assisting the IO. He claimed that he was given authorization by the IO U/s 165 Cr. P.C to conduct search at residence of Dinesh Kumar Bansal and accordingly he alongwith Inspector Punia and two independent witnesses Shri Yadav and CC No. 20/2010 Page16 of 42 Vijay Kumar conducted search at H-12, Phase-I, Ashok Vihar in presence of Dinesh Kumar Bansal who, it was claimed, admitted making payment of Rs.12,500/- to one Anil Kumar Singh, JTO posted at Shakti Nagar Exchange. Disclosure statement of Dinesh Kumar Bansal was claimed to have been recorded. The same was proved as Ex. PW-24/A. It was claimed that after completion of formalities, accused led the CBI team to Switch Room, Shakti Nagar Exchange. It was claimed that the accused could not identify A.K. Singh from amongst officials sitting in the Switch Room. It was claimed that the team then went to the Deputy General Manager Shri Kataria who was asked to produce identity card issue register in respect of employees working in the Exchange. It was further claimed that Dinesh Kumar Bansal identified photograph of one Harnam Dass, JTO whom he knew as Anil Kumar Singh. Shri Kataria was claimed tohave been directed to arrange for presence of the said Harnam Dass alongwith AE of Switch Room and when both of them came, Dinesh Kumar Bansal identified accused Harnam Dass as being the person who made available directly two telephone lines in respect of telephone No. 7110617 & 7127785 from TAX without metering, & claimed that he was paying Rs.12,500/- to Harnam Dass whom he knew as Anil Kumar Singh. Witness correctly identified Harnam Dass. It was further claimed that Harnam Das then disclosed having provided the two telephone lines from Tax to D.K. Bansal by by-passing the metering of the said telephones with the help of JTOs Satish Kumar and Kaushal Kumar. Both the said accused were also identified by the witness. Shri Raj Kishan and Vijender were claimed to have provided the looping by disconnecting the numbers from the Exchange side which resulted in non metering. Technical officers of MTNL were claimed to have conducted technical inspection in the MDF of the Switch Room. Shri Mahajan was claimed to have made ISD calls from both lines and witness CC No. 20/2010 Page17 of 42 claimed that it was found that the same were not being metered in their respective meters of the two lines. Diagram Ex. PW-10/A was claimed to have been prepared by Shri Chabra and the entire proceedings were claimed to have been recorded in pointing out memo Ex.PW-4/A on which witness identified his signatures. Witness also gave details of the cross connections as mentioned in the memo Ex. PW-4/A. During course of cross examination by Ld. Counsel for accuseds witness claimed that he was informed one day prior to the search to attend the office. He claimed that it was not disclosed to him if he was to join a trap team or a search team. He claimed that they left the CBI office at about 7.30 or 8.00 AM and had reached Ashok Vihar premises at 8.45 AM. He did not remember if House No. H-12 was a single storey or a double storey house. He claimed that they did not associate any person from vicinity of the house to attend the proceedings. Signatures of family members found in the house were not claimed to have been obtained on the documents prepared. Witness could not say on which floor of the house the search was carried out. He denied the suggestion of having obtained signatures of accused Dinesh Kumar on blank papers. He claimed that it took them about 2 ½ hour or 3 hours in carrying out the search. He further claimed having informed A.G.L. Kaul about progress of the search and about role of D.K. Bansal even while the search was in progress. He also claimed having told him about A.K. Singh JTO. It was claimed that thereafter Kaul asked him to come over to Telephone Exchange alongwith D.K. Bansal for the purpose of identification and accordingly they went there. He denied the suggestion that another person by the name of A.K. Singh i.e. other than the accused A.K. Singh (Harnam Dass) was working in Telephone Exchange Switch Room. He claimed that he did not remember whether or not the identity card register was seized. He CC No. 20/2010 Page18 of 42 claimed that he did not record statement of the person who had brought the said regiser and did not remember whether or not signatures of said person were obtained on any memo. He specifically claimed that wires and loops connected with the telephone numbers in question were not photographed nor the wire was seized. He denied the suggestion that Mr. Chabra had prepared diagram under CBI pressure. He claimed that there were no other loops found at other originating circuits terminating finally into TAX and only two numbers were connecting the loops to the TAX for the purpose of non recording of reading of the concerned meter and hence there was no question of checking the other loops. He claimed that telephone call was made by Mr. Mahajan from Vigilance Section of MTNL through these two loops to test check that no Meter reading was recorded. Witness claimed that he did not record the number of telephone dialed by Mr Mahajan nor did he talk on the telephone with the said number. He denied the suggestion that accused Harnam Dass had been falsely implicated or that another person A.K. Singh, JTO was working in the said Exchange or that Harnam Dass was a trainee in MTNL. He further denied the suggestion that as per the identity card issue register there was another person in the name of A.K. Singh, JTO. He denied the suggestion that Dinesh Kumar Bansal did not point out Harnam Dass as A.K. Singh. He further claimed that he did not remember if accused Kaushal Kumar was on leave on that day. On going through the pointing out memo, witness claimed that as per memo Kaushal Kumar was not found present at Shakti Nagar Telephone Exchange Switch Room. He denied the suggestion that accused Satish and Kaushal as well as Raj Kishan had all been falsely implicated.
30 PW-25 Dy. SP R.S. Jaggi also claimed having joined the
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search operation on 24.6.93. He claimed having reached Shakti Nagar Exchange at about 8.00 AM alongwith the raid party and further claimed that at about 12.00 Noon R.K. Saini alongwith accused D.K. Bansal and others reached the Telepone Exchange. Thereafter, witness reiterated the facts as stated by PW-24 S.K. Peshin. He further claimed that independent witnesses K.L. Mahajan, Kamal Kumar and MTNL Officers M.L. Chabra, Y.P. Chopra had made test check and confirmed that ISD calls matured from the two numbers but were not metered.
During course of cross examination by Ld. Counsels for the accuseds, witness claimed having received orders from his SP in the morning of 24.6.93 after having been informed in the evening of 23.6.93. He claimed that Y.P. Chopra and the two independent witnesses were present in CBI office prior to his reaching there. He claimed that he did not separately record statement of accused Dinesh Kumar Bansal. It was claimed that no photographs of the Switch Room were taken but only diagram Ex.PW-10/A was prepared. He claimed that no other public witness was called as two independent witnesses were already present in the team. He denied the suggestion that signatures of all the team members were taken on Ex. PW-4/A while it was blank. He also denied the suggestion that another person by the name of A.K Singh, JTO worked in the Telephone Exchange at the relevant time. He denied the suggestion that no wire could be connected from the switch room directly for making the type of alleged calls which could be made only from the main distribution frame (MDF) Section. He claimed that K.L. Mahajan and Y.P. Chopra made calls to their relatives residing abroad but the details were not recorded. He denied the suggestion that no ISD call was made by K.L. Mahajan. Witness claimed that test call was made by drawing a parallel line connected with the number of the line of D.K. Bansal. He admitted that he himself and CC No. 20/2010 Page20 of 42 other CBI officials had neither made any call nor had personally checked to see if ISD call could be made from the said two telephone numbers. He volunteered that the same had been checked in his presence by the two independent witnesses who were part of his team. Witness further admitted that disclosure statement of Dinesh Kumar Bansal (Ex. PW-24/A) did not bear his signature and was not recorded in his presence. He denied the suggestion that Dinesh Kumar Bansal did not met him in Shakti Nagar Exchange. He did not remember if identity card register was seized or not in his presence. He denied the suggestion that an official in the name of A.K. Singh in the MTNL, Shakti Nagar Branch was called and sent back without any inquiry or that he was intentionally not made an accused. He denied the suggestion that signatures of the accuseds were taken on blank papers. He further denied the suggestion that accused Harnam Dass never admitted his guilt or that he did not identify other accuseds. He claimed that he did not remember if accused Kaushal Kumar was officially on leave on 24.6.93. He further denied the suggestion that accused Harnam Dass, Satish Kumar and Kaushal Kumar had not disclosed as to how they had connected the telephone connection being used by Dinesh Kumar Bansal. He denied the suggestion that he was deposing falsely.
31 PW-26 Vijay Kumar claimed that accused Dinesh Kumar was brother of his wife. He identified his signature on search memo Ex. PW-1/A. He claimed that on receiving telephone call from wife of Dinesh Kumar or that of his brother, he had reached 49-A, Pocket-D, Ashok Vihar Phase-III where CBI conducted a raid. He claimed that CBI had reduced the proceedings into writing vide Ex. PW-1/A and obtained his signature on the same. He further stated that at the time of leaving the premises, CBI handed over keys of the flat to him as Dinesh Kumar and Rakesh Kumar had been arrested.
CC No. 20/2010 Page21 of 42 After seeking permission from the court, the witness was cross examined by Ld. PP for CBI and during course of his such cross examination witness admitted that keys were handed over to him being brother in law of accused Dinesh Kumar. He claimed that he was not sure if Dinesh Kumar and Rakesh Kumar had taken the flat on rent from one Mr. Gupta. He admitted that CBI team had seized the telephone instruments, wires and PBX box from the flat.
During course of cross examination by Ld. Counsel for the accuseds witness claimed that CBI team had already collected the instruments and wire and the same were shown to him by CBI team. He denied the suggestion that Dinesh Kumar and Rakesh Kumar were not in the flat at that time or were subsequently brought there by CBI team.
32 PW-27 Purshottam Dass claimed that specimen handwriting of Dinesh Kumar Bansal, Rakesh Kumar Bansal and Prabhat Kumar were obtained in his presence on 30.8.93. Witness identified his signature on document Ex. PW-21/H1 to H-6, Ex. PW=21/J-1 to J-6 and Ex. PW-21/K1 to K-1 to K-8 in that regard.
During course of cross examination by Ld. Counsels for accuseds, he denied the suggestion that he was deposing falsely.
33 PW-28 Shri A.G.L. Gaur Dy. S.P., CBI claimed that on 23.06.1993, after registration of FIR, present case was marked to him. He proved the FIR Ex.PW-28/A. Wtiness further stated that on receipt of FIR, three search parties were consituted to conduct check at three locations i.e. Ashok Vihar where illegal Exchange was being run, second at residence of accused Dinesh Bansal and thridly at Shakti Nagar Telephone Exchange. He claimed that services of Technical Experts from MTNL as well as participation of the independent witnesses was secured and thereafter in the morning of CC No. 20/2010 Page22 of 42 24.06.1993, simultaneous raids were conducted at all the three premises by the three separate teams constituted for the same. Witness claimed that he had led the team which conducted raid at Premises No. 49-A, Pocket-D, Ashok Vihar Phase-III. He identified his signature on the Memo Ex.PW-1/A which he claimed was in his handwriting. Thereafter, witness reiterated proceedings which took place at House No. 49-A about which other witnesses had already deposed. He also deposed about the documents and instruments seized from the spot and identified the same. He also stated about other steps taken by him during course of investigation of the case and identified signatures on the Seizure memo Ex.PW-28./B, C, etc. He also claimed having seized telephone bills from the spot. Witness claimed that on conclusion of his investigation he obtained sanction for prosecution against the public servants and thereafter filed the Charge sheet.
During course of cross-examination by ld. Counsel for the accuseds, witness claimed that a complaint Ex.PW-8/A was handed over to him by S.P., CBI on 23.06.1993. He claimed having personally talked to the complainant Shri R.K. Saini in CBI Office, but claimed that he did not record his statement at that time. Requirement of Technical staff of MTNL was claimed to have been conveyed on 23.06.1993 itself. He did not remember at what time they had left CBI Office for Ashok Vihar nor did he remember the time when CBI team reached there. He further stated that they were not in uniform and he did not call any of the neighbours after reaching the spot. No photographs were claimed to have been taken inside the rooms. Signatures of team members were reportedly not taken on the seized articles. He denied the suggestion of having obtained signatures of Officers on blank sheet of paper. He also denied the suggestion that articles mentioned in Ex.PW-1/A were not seized from the spot. He further claimed that no customer was found CC No. 20/2010 Page23 of 42 present at the spot and addresses of customers were not found mentioned in the documents seized. It was claimed that the accused persons did not disclose addresses of the customers and as such they could not be contacted. He denied the suggestion that investigation was not fair.
34 Cited witnesses Shri N.C. Sood and Shri Rajender Singh Yadav were given up by Ld. PP for CBI and as not other witness was to be examined, ld. PP for CBI closed prosecution evidence vide his statement dated 01.05.2009.
35 Thereafter statements of accused persons were recorded wherein they denied all the allegations of prosecution against them. Accused Raj Kishan claimed that witnesses who had deposed were Government servants and under pressure of CBI. He claimed that he was innocent and had been falsely implicated. Accused Harnam Dass claimed that he was innocent and had been falsely implicated. He claimed that he was not deputed in the Exchange at the relevant time and a false complaint had been lodged against him. Accused Satish Kumar claimed that he had not been identified by co-accused Dinesh Kumar Bansal and he had been falsely implicated in the false case. Accused Kaushal Kumar claimed that false case had been planted against him by CBI in order to solve their case.
36 Accused Harnam Dass and Kaushal Kumar chose to lead defence evidence while the other two accuseds claimed that they did not want to examine any witness in defence. 37 Three witnesses were examined in defence. Dw-1 Shri S.K. Jain produced Service Book of Kaushal Kumar and claimed that as per record Kaushal Kumar was on leave from 19 th June to 25th June and from 26th June, 1993 to 27 th June, 1993, he was on CC No. 20/2010 Page24 of 42 telegraph holiday and thereafter joined the Office on 28.06.1993. Copies of relevant pages of Service Book were proved as Ex.DW-1/1.
During cross-examination by ld. PP for CBI, witness claimed that the Service Book was being maintained in Pay Section of BSNL, Ghaziabad, U.P. and he was not posted there in the year 1993. he denied the suggestion that the Service Book produced did not pertain to accused Kaushal Kumar. He admitted that the original entries Ex.DW-1/1 were not in his handwriting and he could not tell name of the Officer who had signed it. He denied the suggestion that the entries were false or were made subsequently to save the accused. He further denied the suggestion that JTO could come to the Office despite being on leave. He admitted that in June, 1993, Kaushal Kumar was posted in Shakti Nagar Telephone Exchange, Delhi within jurisdiction of MTNL.. He claimed that he had not brought the Attendance Register pertaining to Kaushal Kumar. He further claimed that without seeing the Attendance Register of Shakti Nagar Telephone Exchange, he could not say whether or not Kaushal Kumar, JTO was on leave between 19.06.1993 to 25.06.1993. He denied the suggestion that he was deposing falsely.
37 DW-2 Shri Vinod Kumar claimed that the Attendance Register of Kaushal Kumar, JTO, Shakti Nagar Telephone Exchange was not available. He produced certificate in that regard as Ex.DW-3/1 and identified signatures thereupon. He further stated that Attendance Register are generally kept in safe custody in the Exchange.
During course of cross-examination by ld. PP, witness admitted that an effort was made to trace the Attendance Register in question. He further claimed that General Manager was not the custodian of the Attendance Register.
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38 DW-3 Shri O.P. Agnihotri identified his signature and that
of A.K. Gupta on certificate Ex.DW-3/1 . He too claimed that the Attendance Register was not traceable.
During course of cross-examination by ld. PP for CBI, witness claimed that an effort was made to trace out the Attendance Register but it could not be traced out. He further claimed that the said Register could be available only in the Record Room of Switch Rooms where accused No. 6 (Kaushal Kumar) was posted.
No other witness was examined in defence.
39 During course of his submissions, it was submitted by ld. PP for CBI that co-accused Dinesh Kumar Bansal, Rakesh Bansal & Prabhat Kumar had already pleaded guilty and had been convicted and sentenced on 03.06.2003. It was submitted that as the said convicts had been jointly charged with present accused persons for having conspired to commit the offence, plea of guilt of those convicts could be taken into consideration in the present matter U/s. 30 of the Evidence Act. It was further submitted that prosecution had proved on record that the accused persons had conspired together to misuse ISD/STD facilities in respect of telehones installed in House No. 49-A, Pocket-D, Ashok Vihar by way of passing the metering equipments at Shakti Nagar Telephone Exchange and that a parallel telephone Exchange was being run by the accused persons at the said premises in furtherance of conspiracy of each of them. It was submitted that by way thereof, the accused persons had caused wrongful loss to Government of India and wrongful gains to themselves. Attention of this Court was also drawn to testimonies of the prosecution witnesses who, it was submitted had duly proved case of the prosecution. It was submitted that accused Harnam Dass had posed himself as Anil Kumar Singh before the other co-accused persons and was receiving sum of Rs.12,500/- p.m. from Dinesh CC No. 20/2010 Page26 of 42 Kumar Bansal and Rakesh Kumar Bansal in lieu of providing facilities to them permitting STD/ISD calls which they used to their benefit by according conference facility to their customers. During course of his submissions, Ld. PP for also placed reliance on State Vs. Navjyot Sandhu (2005) Crl. L.J. (3950) in support of his submission that joint disclosure of two accused persons which leads to discovery of fact is not precluded from law. It was submitted that it had been observed by Hon'ble Supreme Court of India that such like joint or simultaneous disclosures were not inadmissible U/s. 27 of the Indian Evidence Act. As per ld. PP, Harnam Dass was the kingpin of the scandal amongst the officials of MTNl and had carried out the entire operation in conspiracy with his other oc-accused Satish Kumar, Kaushal Kumar & Raj Kishan whom he had specifically named in his disclosure statement. It was further submitted that the accused persons facing trial were Telgraph Officers within meaning of the Indian Telegraph Act and all accomplices had also committed offence punishable U/s. 27 of the Indian Telegraph Act. It was prayed that the accused persons be convicted and sentenced in accordance with law.
40 Ld. Counsel for accuseds Satish Kumar & Kaushal Kumar submitted that they were sought to be falsely implicated in the present case only on basis of an alleged disclosure statement made by other co-accused Harnam Dass. It was submitted by ld. Counsel that disclosure statement of co-accused was inadmissible against the others and as such no order of conviction could be passed against accuseds Saitsh Kumar and Kaushal Kumar as there was not even an iota of incriminating evidence against them except for the alleged disclosure statement of Harnam Dass. While referring to the evidence on record, it was submitted that as per allegations, accused Dinesh Kumar had tied up with one Anil Kumar Singh for allegedly running a parallel Telephone Exchange. It was submitted CC No. 20/2010 Page27 of 42 that no Anil Kumar Singh had been made an accused in this matter and rather false case had been made out by accused Harnam Dass by alleging that he was Harnam Dass @ Anil Kumar Singh. As per ld. Counsel, Harnam Dass was allegedly identified by Dinesh Kumar on basis of photograph on the Identify Card Register which reportedly had been produced by officials of Shakti Nagar Telephone Exchange. It was claimed neither the said photograph nor the Register was seized during course of investigation nor the same was put up for judicial scrutiny during the course of trial. It was further submitted that the disclosure statement / Pointing Out Memo Ex.PW-4/A left much to be desired. While placing reliance on 2010 Crl.LJ. 635 (Malkiyat Singh & Anr. Vs. State), it was submitted by ld. Counsel that none of the witnesses examined had repeated the words allegedly spoken by Harnam Dass during course of his alleged disclosure statement. As per ld. Counsel, mere exhibiting of the disclosure statement in absence of those words having been repeated by the witness made it inadmissible U/s. 27 Evidence Act. While referring to the Pointing Out Memo, it was further submitted that the same referred to accused Harnam Dass as well as Satish Kumar but it was not clear as to who had pointed out the incriminating material, as the word used was 'He'. While referring to testimonies of PW-4 & 5, it was submitted that they had not identified accused Harnam Dass or Satish Kumar in Court and it was submitted that accused Kaushal Kumar was not even present in the Exchange at the time of raid. As per ld. Counsel, the accused had been falsely implicated.
41 Ld. Counsel for accused Harnam Dass submitted that there was nothing on record to show that any of the accused had caused wrongful gain to himself or wrongful loss to the Exchange. It was submitted that prosecution has failed to show any agreement between the parties regarding their having entered into a conspiracy CC No. 20/2010 Page28 of 42 to commit the alleged act. Ld. Counsel further submitted that the alleged exporters who were projecting as being the persons for whose benefit the parallel Exchange was being run were neither cited nor examined in the present case. Another point of argument advanced by ld. Counsel was to the effect that the case property of this case and the alleged instruments used for running the parallel Telephone Exchange were never shown to prosecution witnesses during course of trial and had not been exhibited during course of trial. It was also pointed out that as per allegations, the connections at Shakti Nagar Telephone Exchange had been tampered with so as to by pass the metering equipment. Ld. Counsel submitted that neither the said equipments were seized nor photographs of the spot taken to fortifie claim of the prosecution. The main line of argument advanced was to the effect that the accused running a parallel Telephone Exchange at Ashok Vihar was not proved by the prosecution, no case was made out against Harnam Dass for having entered into conspiracy with the other co-accused persons. While referring to the Sanction Order, it was pointed out that complete facts had not been brought to the knowledge of the Sanctioning Authority or atleast were not mentioned in the Sanction Order as it did not mention the name of Anil Kumar Singh / A.K. Singh at any place whatsoever. Ld. Counsel further submitted that the only allegation on record against accused Harnam Dass was the alleged disclosure statement of co-accused Dinesh Kumar Bansal and that the same was insufficient to convict the accused Harnam Dass. Ld. Counsel further submitted that there were material contradictions in testimonies of the prosecution witnesses in as much as PW-1 & PW-3 had claimed that the door had been broken open while PW-14 claimed that it was forcibly opened by CBI while PW-24 claimed that it was broken.. It was further submitted that PW-26 Shri Vijay had claimed having gone to House No. 49-A while PW-24 S.K. Peshin CC No. 20/2010 Page29 of 42 claimed that Vijay had gone with him to House No. H-12, Ashok Vihar. It was also submitted that the accused persons who had pleaded guilty were not jointly tried with the accused persons now facing trial and as such, their confessions could not be taken into consideration.
41 In his reply arguments, it was submitted by ld. PP for CBI that contradictions were minor in nature and did not go to root of the matter.
42 This Court has given thoughtful consideration to the arguments advanced and has also perused the records. In a recent judgment Syed Ahmed Vs. State (2012 VII AD) SC page 489, while referring to some earlier decisions it was observed that a discrepancy would be minor if it did not affect the substratum of the prosecution's case or impact on the core issue. It was observed that in such an event the minor discrepancy could be ignored.
43 In the present case the private persons namely Dinesh Kumar Bansal, Rakesh Kumar Bansal and Prabhat Kumar have already been convicted on basis of their plea of guilt. Dinesh Kumar and Rakesh Kumar, as per allegations were running the parallel telephone exchange at Ashok Vihar from where instruments being used for the same had been seized. It was after his arrest from Ashok Vihar that the accused Dinesh had made a disclosure statement and that led the CBI team to Shakti Nagar Telephone Exchange where complicity of the remaining accused persons (who are presently facing trial) was discovered. As such, minor discrepancies pointed out by Ld. Counsels for the accused persons like whether the door of the house at Ashok Vihar was broken open / forcibly opened / opened by the inmates is of little consequence while dealing with case of the present accused persons. Similarly, the discrepancy between testimonies of PW-26 Vijay and PW-24 CC No. 20/2010 Page30 of 42 S.K. Peshin regarding PW-26 having visited Property No. 49-A or Property No. H-12 during course of raid become insignificant. On same lines, the question as to what number had been dialed from Ashok Vihar or who had dialed the same or with whom he had talked also looses its significance.
44 Yet another main line of argument advanced by Ld. Counsels for the accused persons was that the seized case property was not shown to the witnesses and was not duly exhibited during course of trial. It had been submitted that non production of the case property was fatal to case of the prosecution. A perusal of testimony of PW-14, 23 & 28 is enough to throw out the said argument. The seized telephone instruments and other articles had been shown to the witnesses during course of their testimony and had been duly identified by them as being the same which had been seized at the time of raid. As such, it cannot be said that the case property was neither shown to witnesses nor was identified during course of trial.
45 The other objection raised on behalf of the defence was to the effect that the telephone number to which ISD Call had been made during course of investigation had not been disclosed. Infact, PW-23 during course of his testimony has mentioned the said telephone number and thereby laying to rest the said argument.
46 No doubt, investigation in the present matter appears to have left much to be desired. This court has no hesitation in putting on record the fact that the investigating agency / investigating officers have not investigated the case properly. Details in respect of the beneficiaries i.e. the exporters who were using the parallel telephone exchange or that of the parties to whom ISD/STD calls CC No. 20/2010 Page31 of 42 were made were never called upon to join investigation and rather no effort appears to have been made by the investigating officers to ascertain their identities. There is apparent lack of effort on part of the investigating agency to ascertain the amount of loss to the Government Exchequer and the probable benefit to the accused persons who were running the parallel exchange. But then, faults on part of the investigating officer or investigating agency do not go to benefit of the accused if the material on record is enough to prove their culpability. It is settled principle of law that defence cannot take benefit of fault of the investigating officer. In State of MP Vs. Hari Mohan (AIR 2001 SC 142) it had been observed that a defective investigation cannot be a basis for acquitting the accused if a case was made out against the accused despite such defects and failure) 47 As regards submission made by Ld. Counsel for the accused regarding inadmissibility of joint disclosure allegedly made by accused Harnam Dass and Satish Kumar, it would be pertinent to mention that in State Vs Navjot Sandhu (2005 Crl. LJ Page 3950) it had been observed that joint disclosures or simultaneous disclosures per se were not inadmissible U/s 27 Arms Act. Similar observation was made when it was observed in Bali @ Balmiki and Another Vs. State of MP [1989 (3) Crimes Page 721] that it had been held in State Government of MP Vs. Chottey Lal Mohan Lal (AIR 1955 Nagpur Page 71) that simultaneous statements made by accused persons are not per se inadmissible in evidence and are liable to be considered if the discovery made in consequence thereof affords guarantee about the truth of the statements. A perusal of the alleged disclosure statement in question would throw much light on the point in issue. The document in question (D-10) is the pointing out memo which during trial had been proved as Ex. PW-4/A. A close perusal of this document goes to show that besides being the CC No. 20/2010 Page32 of 42 pointing out memo, it also contains what had been disclosed by accused Harnam Dass during course of his interrogation. The pointing out, as mentioned in the memo had been done by Harnam Dass and Satish Kumar, but the disclosure portion is only of Harnam Dass. In that view of the matter, it cannot be said that present is a case of joint disclosure of two accused persons namely Harnam Das and Satish Kumar. Rather, it is a simple case of disclosure made by Harnam Dass alone and thereafter joint pointing out by Harnam Dass and Satish Kumar. Significantly, as Satish Kumar had allegedly not made any disclosure statement to the CBI, his mere pointing out the unauthorized telehone connections cannot be said to be "a fact discovered" in consequence of the disclosure made. That leaves us with only the disclosure made by accused Harnam Dass and "fact discovered" subsequent thereto i.e. the points where the telephone connections had been tampered with so as to permit STD/ISD calls being made without any billing.
48 While on this, it would be pertinent and important to refer in brief the testimony of PW-10 & PW-22. PW-10 Shri M.L,. Chabra during course of his testimony i.e. cross examination by Ld. PP for CBI had admitted that Harnam Das admitted in his presence that he was taking money from the private party which was shared by him and other JTO's and Wiremen. He further admitted that Harnam Dass traced the manner in which lines had been diverted by him and his accomplices and that it was only thereafter that he (PW-10) marked the diagram (Ex. PW-10/A). He further admitted that the numbers on which the illegal diversion of telephone lines was made were recorded in the memo and that the STD/ISD facility was being misused on the diverted lines. During course of cross examination by Ld. Counsel for accused, witness admitted that Harnam Das was asked to trace the diversion as he was on duty at that time. That CC No. 20/2010 Page33 of 42 being the position, it is apparent that even during cross examination of the witness, it had been admitted that the diversions had been traced and pointed out by Harnam Dass. Significantly, not even a suggestion has been made to this witness to the effect that Harnam Dass had not traced out the manner in which the lines had been diverted or that the same had not been diverted by him. Also relevant is the testimony of PW-22 in so far as the witness has only stated about the accused Harnam Dass having disclosed about unauthorized telephone connections and thereafter Harnam Dass and Satish having pointed out and traced a loop wire connection circuit through which unauthorized telephone connection was made.
49 That being the position, it is apparent that it was only Harnam Dass who had deposed or disclosed about the fact in issue which subsequently was pointed out by him as well as Satish Kumar. The information furnished by Harnam Dass relates distinctly to the fact thereby discovered and as such is covered under purview of Section 27 of the Indian Evidence Act.
50 While on this, it would be pertinent to note that during course of cross examination of prosecution witnesses, a story had been put forward on behalf of accused Harnam Dass to the effect that there was some other A.K. Singh posted as JTO in the Shakti Nagar Exchange who was permitted to go scot free by the investigating agency while accused Harnam Dass was falsely implicated. On this line was the cross examination of PW-22 who denied the suggestion that they were shown one person A.K. Singh in the Switch Room of Telephone Exchange or that he was found present there. Similar suggestion had been given to PW-24 S.K. Peshin and PW-25 R.S. Jaggi. But then, these were the suggestions made to the witnesses by Ld counsel for the accused. Surprisingly CC No. 20/2010 Page34 of 42 the accused Harnam Dass during course of his statement recorded U/s 313 Cr. P.C did not utter a word about the said A.K. Singh. He did not claim that some person by the name of A.K. Singh was working as JTO in Shakti Nagar Telephone Exchange or that he was called and sent back without any inquiry and he intentionally was made an accused (as had been suggested to PW-25 during course of his cross examination). Although accused Harnam Dass chose to lead defence evidence, no effort whatsoever was made on his part to produce on record any records connected to posting of A.K. Singh JTO in Shakti Nagar Telephone Exchange. He did not even move an application for summoning of any records in that regard to be proved in his defence. This court is not oblivious of position of law that while prosecution has to prove its case to the hilt, accused is only required to probablise his defence. But then, the accused must take some positive steps towards probablising his defence and should not be content by making a mere suggestion to the prosecution witnesses in respect of the defence he proposes to put forward. Harnam Dass apparently has not taken any steps to even probablise his defence inthis case.
51 Let us now deal with the four accused persons who are facing rial before this court.
52 Case of the accused Raj Kishan facing trial before this court appears to be self same as that of Vijender Singh who had been discharged by my Ld. Predecessor vide order dated 3.6.03. The only difference in their cases appears to the effect that while Ld. Counsel for accused Vijender Singh had contended that no charge was made out against him, Ld counsel for accused Raj Kishan had conceded on point of charge. However, the accused having conceded to framing of charge against him does not imply that he CC No. 20/2010 Page35 of 42 can be found guilty even if no incriminating material appears on record against him. On close scrutiny of evidence on record, it has transpired that there is not even an iota of incriminating material on record against accused Raj Kishan to prove his culpability in this case. Accused Raj Kishan is accordingly ordered to be acquitted.
53 As regards accused Kaushal Kumar, apparently he was not present in the office on the day raid was conducted. The only material on record against this accused appears to be the alleged disclosure statement of co-accused Harnam Dass. Besides the said disclosure statement, there is not even an iota of incriminating material against accused Kaushal Kumar on record. It is no longer in dispute that mere disclosure statement of co -accused, in absence of any other incriminating material is insufficient to pass an order of conviction against the accused. As such, in opinion of this court even accused Kaushal Kumar deserves to be acquitted.
54 As regards accused Satish Kumar, all that could be lead on record by the prosecution against him was the alleged disclosure statement of Harnam Dass and the pointing out memo (Ex. PW-4/A) wherein Satish Kumar alongwith Harnam Dass was alleged to have pointed out the tampering with the points of telephone exchange. It had been observed in Sakaldeep Vs. State (1993 Crl. LJ 551) that mere fact of recovery at instance of accused would not be admissible U/s 27 of the Indian Evidence Act in absence of any information having been furnished in that regard to the police by the accused. Even in this case apparently no disclosure statement had been made by accused Satish Kumar as regards the tampering with of connections in the Shakti Nagar Telephone Exchange and as per allegations, he alongwith Harnam Dass had only pointed out the tampered with portions. Besides this allegation, and the alleged CC No. 20/2010 Page36 of 42 disclosure statement of Harnam Dass, there is nothing incriminating on record against accused Satish Kumar. As such, in considered opinion of this court despite allegation of Satish Kumar having been found present at the spot and having pointed out the tampered with portions in telephone exchange, no order of conviction can be foisted upon him. He is accordingly ordered to be acquitted.
55 However, as already discussed herein above, case of Harnam Dass is different from that of all other co-accused persons. He had originally been named as a culprit (under the assumed name of A.K. Singh) by co-accused D.K. Bansal who subsequently pleaded guilty to the charges framed against him and was convicted. Besides, accused Harnam Dass allegedly made a disclosure statement to police and got discovered the facts i.e. places where illegal and unauthorized connections had been got done by him in association with others. Factum of accused Harnam Dass having disclosed these facts and having pointed out the relevant places in Shakti Nagar Telephone Exchange have been duly deposed to by the prosecution witnesses PW-10 & 22 besides others. Harnam Dass had been specifically charged with for having committed an offence punishable U/s 120-B IPC read with Section 13 (2) read with Section 13 (1)(d) of PC Act and U/s 27 of the Indian Telegraph Act. He was also separately charged with for having committed substantive offence U/s 13(2) read with Section 13(1)(d) of PC Act as well as offence punishable U/s 27 of Indian Telegraph Act.
56 U/s 27 of the Indian Telegraph Act, if any Telegraph Officer transmits by telegraph any message on which the charge prescribed by the Central Government, or by a person licensed under this Act , as the case may be, has not been paid, intending thereby to defraud the Central Government or that person, he shall CC No. 20/2010 Page37 of 42 be punished with imprisonment for a term which may extend to three years or with fine, or with both.
57 Accused Harnam Dass being posted as JTO in Shakti Nagar Telephone Exchange was a Telegraph Officer and by permitting STD/ISD calls to be made by other co-accused persons at a rate much lower than the rate prescribed by the Central Government, it is apparent that he had defrauded the Central Government and had committed an offence punishable U/s 27 of the Indian Telegraph Act. Acts of Harnam Dass as have been mentioned herein above in this judgment make it apparent that he being a public servant had tampered with the Electronic Telephone Machinery for permitting unauthorized STD/ISD calls by bypassing the meter at Shakti Nagar Telephone Exchange and thereby by corrupt or illegal means had obtained for himself and others pecuniary gains and thereby had committed criminal misconduct as defined U/s 13(1)(d) and punishable U/s 13(2) of P.C. Act.
58 As such, while accused Satish Kumar, Kaushal Kumar and Raj Kishan are acquitted in this case, accused Harnam Dass is convicted for having committed an offence punishable U/s 27 of the Indian Telegraph Act as well as offence U/s 13(1)(d) of P.C Act which is punishable U/s 13(2) of P.C. Act. It may be mentioned that no specific charge had been framed against accused Harnam Dass regarding his having committed an offence punishable U/s 120-B IPC which by itself is a substantive offence. Only charge in this regard framed against him was regarding his having committed offence punishable U/s 120B IPC read with Section 13(2) read with Section 13(1)(d) of P.C. Act & U/s 27 Indian Telegraph Act. As no separate charge had been framed against Harnam Dass in respect of his having committed an offence punishable U/s 120-B IPC and as CC No. 20/2010 Page38 of 42 he has been held to have committed an offence punishable U/s 13(1)
(d) punishable U/s 13 (2) P.C. Act and in view fact that co-accused Dinesh, Rakesh and Prabhat had pleaded guilty to charge U/s 120-B IPC read with Section 13(1)(d) read with Section 13(2) P.C. Act read with Section 27 Indian Telegraph Act and were convicted and sentenced, accused Harnam Dass is also liable to be convicted for said offences for having entered into criminal conspiracy with those accused persons.
58 Ordered accordingly.
Announced in the open court (M.R. SETHI)
on 25.08.2012 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No. 20/2010 Page39 of 42
IN THE COURT OF SH. M.R. SETHI:
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC NO. 20/2010
ID No. 02401R0073272001
(In Re:- CBI Vs. D.K. Bansal & others)
CBI
Versus
Harnam Dass
ORDER ON SENTENCE:
This Court has heard ld. Counsel for the convict Harnam Dass as also ld. PP for CBI on point of sentence.
It was submitted by ld. Counsel for the convict that convict has been facing trial in this case for the past about 18 years and is now aged 57 years. It was submitted that convict is the only earning member of the family consisting of his wife, who is a heart patient and son who is doing MBA. It was submitted that daughter of convict is already married. It was further submitted that convict has been suffering from Spondalysis, Slip disc and prostrate problem. It was prayed that keeping in view these facts, and also the fact that prosecution had failed to prove receipt of any money by the convict, he be dealt with liniently.
Ld. PP for CBI on the other hand has submitted that the convict was running a parallel Telephone Exchange in conspiracy with other accused persons who had already pleaded guilty. It was submitted that by his said conduct, the convict had caused huge losses to the Govt. Exchequer and had made personal gains. It was submitted that the convict was not entitled to any lineancy while CC No. 20/2010 Page40 of 42 awarding punishment.
This Court has given thoughtful consideration to facts and circumstances of the case and also to the submissions made.
Perusal of records reveals that co-accused Dinesh, Rakesh & Prabhat Kumar had pleaded guilty at the stage of framing of charge and had been sentenced to undergo S.I. till rising of Court and to pay fine of Rs.75,000/- each I.D. three months for offence punishable U/s. 27 of the Indian Telegraph Act. As regards offence punishable U/s. 120 B IPC r/w 27 of the Indian Telegraph Act r/w. 13 (2) r/w 13 (1) (d) of PC Act, they were directed to be released on probation. While granting probation to those convicts, my ld. Predecessor had placed reliance on Rattan Lal Arora Vs. State (through CBI) (Crl. Appeal No. 471 of 1999 decided on 29.10.2002).
Under normal circumstances, this Court would have followed the approach adopted by my Ld. Predecessor while sentencing the present convict. However, it has transpired that the said order passed by Hon'ble Single Judge of Delhi High Court had been set aside by Hon'ble Supreme Court of India in State through S.P. New Delhi Vs. Rattan Lal Arora in Appeal (Crl.) 532 of 2004 on 26.04.2004. It was observed therein that there was no scope for extending the benefit of the Probation Act to a convict who has been convicted for an offence under PC Act. As such, benefit of probation cannot be granted to the convict.
The convict by his conduct and acts had caused loss to Govt. Exchequer and had exploited his position as a Government servant while being posted as JTO in Shakti Nagar Telephone Exchange. Although there were allegations regarding the convict being given Rs.12,500/- p.m., besides disclosure statement of co- accused, nothing legally admissible in this regard could be brought on record by the prosecution. This coupled with the facts about age CC No. 20/2010 Page41 of 42 of the convict, his family background and the fact that accused has been facing trial for past about 18 years, in considered opinion of this Court, the following sentences would be sufficient to be imposed upon the convict in the interest of justice.
1. In respect of offence U/s. 13(1) (d) PC Act punishable U/s. 13(2) PC Act , the convict is sentenced to simple imprisonment for 1 year and fine of Rs.10,000/-. In default of payment of fine, the convict shall undergo further SI of two months.
2. In respect of offence punishable U/s. 27 of the Indian Telegraph Act, the convict is sentenced to simple imprisonment for six months alongwith fine of Rs.10,000/- I.D. S.I. one month.
3. For offence punishable U/s. 120 B IPC r/w. Section 27 of the Indian Telegraph Act r/w. Section 13 (1) (d) PC Act punishable U/s. 13(2) PC Act, the convict is sentenced to fine of Rs.30,000/- ID two months.
Submissions regarding quantum of sentence stand disposed off accordingly.
Announced in the open court (M.R. SETHI)
on 25.08.2012 SPECIAL JUDGE-IV, CBI (PC ACT)
TIS HAZARI COURTS, DELHI
CC No. 20/2010 Page42 of 42