Bangalore District Court
(Represented By The Learned App) vs Without Obtaining Any License Or on 22 March, 2021
1 CC 12779/2007
IN THE COURT OF XLI (41ST) ADDITIONAL CHIEF
METROPOLITAN MAGISTRATE, BENGALURU
DATED THIS THE 22nd DAY OF MARCH 2021
PRESENT
SRI S.S.BHARATH M.A. LL.M.,
ST
XLI (41 ) ADDITIONAL CHIEF METROPOLITAN MAGISTRATE,
BENGALURU
CRIMINAL CASE NUMBER 12779 OF 2007
BETWEEN
1. STATE represented by
Kormanagala Police. ....COMPLAINANT
(Represented by the learned APP)
AND
1. Sumith Sharma S/o B.R.Sharma,
Aged about 45 years,R/o No.24,
K.R.Garden, Ashok Avenue,
Bengaluru17.
2. Smt.Lalitha Sharma W/o Sumith Sharma,
Aged about 48 years, R/o No.24
K.R.Garden, Ashok Avenue,
Bengaluru17.
....ACCUSED
(Represented by Sri.A.Nagaraja Advocate)
2 CC 12779/2007
THE KORMANGALA POLICE HAVE CHARGE SHEETED
BOTH THE ACCUSED NO.1 AND 2 FOR THE OFFENCES
PUNISHABLE UNDER SECTION 420, 120B, 379 R/W
SECTION 34 OF IPC TOGETHER WITH SECTION 4 AND
20 OF INDIAN TELEGRAPH ACT, 1885 R/W SECTION 3
AND 6 OF INDIAN WIRELESS ACT, 1933.
AFTER COMPLETION OF ADJUDICATION, THIS CASE
COMING ON FOR JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING...
Offences alleged u/s : 420,120(b), 379, IPC and
4 and 20 of IT Act, 1885
and 3 and 6 of Wireless
Act.
Charge sheet filed on : 29092006
Trial commenced on : 21052010
Trial completed on : 31082012
Judgment date : 22032021
Total duration : DaysMonths Years
23 05 14
JUDGMENT
1. Case of the prosecution is as under; It is alleged that within the limits of Kormangala police, at 4th block, 80 feet road, Green leaf extension, building No.2 in the ground floor of it, accused No.1 did establish a company namely 'Froze software solutions Private Limited' . He and accused No.2 did 3 CC 12779/2007 use phones of Airtel company bearing No.32508201 to 32508210 for the purpose of converting international calls to local calls. Both accused had no license to do that. Both earned around Rs.29.5 Lakhs illegally and have cheated the Government. Accordingly the case came to be registered.
2. This court has taken the cognizance of the offences punishable under sections 420, 120(b), 379 R/W Section 34 Of IPC together With Section 4 And 20 Of Indian Telegraph Act, 1885 R/W Section 3 And 6 Of Indian Wireless Act, 1933. As per the directions of the court, CC.No.12779 of 2007 came to be registered. In compliance of section 207 of Cr.P.C, the copies of the charge sheet and other prosecution papers came to be supplied to the accused.
3. The court, after being satisfied as to existence of materials against the accused to proceed further in this matter, framed the charge, read over the same to 4 CC 12779/2007 the accused in Kannada language in which they claim to be conversant with. But they did not plead guilty and they claimed then, to be tried. Therefore, this court issued summons to the witnesses.
4. During the course of trial, as PW1 failed to adduce further evidence, his further evidence was taken as closed and this court keeping in mind the failure of the prosecution to examine CW3 to 6, has dropped them and posted the matter for statement of accused for the purpose of section 313 of Cr.P.C. As could be seen from the records, prosecution relies upon the evidence of both PW1 and 2 and also on Mo.1 to 4 and further upon Ex.P1, Ex.P1(a) to Ex.P1(c) and upon Ex.P2 to Ex.P14.
5. Heard the learned Sr.APP.
6. Heard the learned counsel for accused. 5 CC 12779/2007
7. Following points arise for determination;
1) Whether the prosecution proves beyond reasonable doubt that, using the aforementioned phone numbers belong to Airtel Company, the accused No.1 and 2 have converted international calls to local calls without license and have put the Government to monetary loss and accordingly have cheated the Governments and earned illegally the money to the tune of Rs.29.5 Lakhs in their company namely Froze software solutions private Limited within the limits of Kormangala in the aforementioned address and to do that work they had no license from Ministry of communication and IT department of communication, Government of India, accordingly they shall be punished for the offence punishable under section 420 R/w Section 34 of IPC ?
2) Whether the prosecution proves beyond reasonable doubt that, in the aforementioned manner, in their aforementioned establishment, the accused No.1 and 2 have conspired to commit the said offence of cheating in the aforementioned manner, accordingly they shall be punished for the offence punishable under section 120(b) R/w Section 34 of IPC ?
6 CC 12779/2007
3) Whether the prosecution proves beyond reasonable doubt that within the aforementioned limits, at the aforementioned address in the aforementioned company, both accused No.1 and 2 have used Quintum VOIP Gateway device to convert illegally the international calls to local calls and accordingly they have committed theft of international calls and they are liable to be punished for the offences punishable under section 379 R/w Section 34 of IPC ?
4) Whether the prosecution proves beyond reasonable doubt that in the aforementioned address, both accused No.1 and 2 in a company namely Froze Software solutions Private Limited belong to accused No.1, in the said address, both accused without obtaining any license or permission from the Ministry of Communication and IT Department of Communication, Government of India have used phones of Airtel company bearing NO. 32508201 to 32508210 and accordingly have illegally converted the international calls to local calls and they did take money from the customers to the tune of Rs.29.5 Lakhs and they earned illegally and they did put the Government of India to monetary loss and therefore, they are liable to be punished for the offences contemplated in sections 4 and 7 CC 12779/2007 20 of IT Act, 1885 and also under sections 3 and 6 of Indian Wireless Act, 1933?
5) what order ?
8. Above points are answered as under; Point no.01 : In the Negative Point no.02 : In the Negative Point no.03 : In the Negative Point no.04 : In the Negative Point no.05 : As per final orders for the following reasons...;
REASONS The prosecution is duty bound to prove the guilt alleged as above against accused Nos.1 and 2. The burden to prove the aspects stated herein above against the accused Nos.1 and 2, heavily lies upon the prosecution. The points aforementioned all are taken independently.
9. Point No.01; PW1 being a Subdivisional Engineer, BSNL namely Kallappa Ramachandra Bangi deposed that on 04/08/2006, he, in association with CW1 8 CC 12779/2007 and 5 had been to a company namely "Project Softwares Solution Company at Kormangala", which was carrying out some activities of converting international calls to local calls and accordingly said company had put the BSNL to monetary loss. Further he deposed that when all of them had been to the said company, both accused No.1 and 2 were present and they did not even allow him to inspect the premises and to examine the instruments which were being used for the said purposes, therefore, CW1 herein did file a complaint and took police to the spot and all of them found therein a Modem called as "quantum gateway server" together with rooters and switches and he learnt that using those instruments, international calls could be converted into local calls. Therefore, he seized those instruments.
10. As could be seen from the evidence of PW2, he deposed that he is acquainted with CW2 and could identify both accused. On 04/08/2006, the PW1 and 9 CC 12779/2007 CW5 had been to the said company at Kormangala and in the said company at the instance of both accused, illegal international telephoning activities were being carried out with IP address :
125.16.146.36and it belongs to M/s Basics and Basics company, which was located at No.2, 1st Floor, Green leaf Extension, Kormanagala and all of them (PW2, PW1 and CW5) inspected the premises.
Inspite of disclosing their identity, as on the time of inspection, accused 1 and 2 did not allow them to do their work and they were made to wait for about 30 minutes at reception. When they got inside company they saw few boxes in which equipments were placed and those equipments were being used for illegal internet telephoning activities. They had been to kormangala police station and submitted a case.
11. He further deposed that, all of them had been to the company of accused and police also accompanied them and during inspection, they learnt that Mo.1 to 10 CC 12779/2007 4 being equipments, they were being used for the said purpose and those devices were being used to convert international calls to Indian network local calls and the same is a major threat to the security of the nation and they did obtain the connection from the Airtel Company as well.
12. Learned Advocate appearing for accused cross examined them. As could be seen from the cross examination, it is clear that PW1 has answered that the spot in which it is alleged that the accused have committed aforementioned crime does not come under his jurisdiction. However, he answers that they were directed to coordinate with the officers of DOT and letter was also issued in the said regard and he further answered that he is not one amongst the representatives of Vigilance Telecom Monetary cell. During his cross examination many questions regarding the time as to their reach to the company aforementioned and the time by which they started 11 CC 12779/2007 from their office etc have been questioned. They are of no use for the purpose of this matter. Because whether using the aforementioned devices the accused have committed the aforementioned offences is the question to be decided in this matter. The reach of aforementioned witnesses to the company of the accused is not in dispute and further it is not in dispute that the said company belongs to accused. However in the cross examination, PW1 has answered that he does not know the names of the accused. Above answer of the above witness would certainly ignite a doubt in the mind of this court as to, how, although, the accused have been alleged to have committed above offences, he does not know the names of the accused. It is not in dispute that in the ground floor of the said building, the company namely ' Basics and Basics' is being run and it is not in dispute that, the company of the accused is in the first floor.
12 CC 12779/2007
13. Though, above witness PW2 has deposed during his evidence that the offence did take place in the ' Basics and Basics' company, still the very answer alone does not render the case of the prosecution unbelievable. Although the PW1 has answered in his cross examination that he cannot say the name of the proprietor of those companies, still the ignorance of PW1 regarding the names of proprietor of those companies, does not render the case of the prosecution unbelievable. Even during the cross examination, the PW1 answered that when they entered the premises of accused, for about half an hour they were not permitted to enter inside the premises and they were made to wait near reception. However, crucially PW1 has answered that when they entered inside the premises of the accused, they did not see any instruments being used to convert calls. He has answered that by the time they entered inside the premises of the accused, the internet connection 13 CC 12779/2007 was not alive. He did not see any instruments which converts the calls.
14. Although the questions regarding the dimension of the premises of the accused, contents of Mahazar, timings as to mahazar, number of signatories to the mahazar have been asked to PW1 during cross examination, still those aspects cannot by themselves take away the strength of the case of the prosecution. Although learned advocate did put many suggestions denying the aspects of the mahazar, his suggestions have been answered as false by the PW1. Except above nothing much has been elicited during the cross examination of PW1.
15. During the cross examination of PW2, he has answered that the office of accused was traced by him when accused indulged in scanning of internet protocol address on the routing basis in the office at 14 CC 12779/2007 Chennai. But the said aspect has not been stated in any of the prosecution documents as per the answer of PW2. He admits in his cross examination that regarding the commission of the offences at the instance of accused, he has not informed his superior officers. Further many other questions regarding the format of his complaint etc have been put forward as questions. Regarding the timings as to leaving of his office to reach the alleged spot etc also have been put. Further questions regarding the contents of complaint and the materials allegedly present in the place in which they allegedly conducted the raid etc., also have been asked. Further PW2 has denied the suggestion that to use an instrument known as VIVO IP gate way, land line phone connection is necessary. In the cross examination he has answered that as the accused have disconnected the net connection as on the time of raid, call logs got erased. One more suggestion also has been put to the effect that, no instrument was found in the office belongs to accused 15 CC 12779/2007 and further PW2 has answered that as on the time of raid he did not see any land line phone connection or the equipment shown as Mo.4 etc. He has admitted that he did not check the instruments Mo.1 to 4 before submitting his complaint. Further he has answered that he did not check the IP address of those devices.
16. Apart from the questions to the said effect, in the cross examination of both PW1 and 2, nothing much has been elicited by the learned advocate appearing for the accused. On a careful reading of the entire cross examination of the above witnesses one thing is clear in this case that there is no specific defence of both accused against the case alleged against them. Although the detailed cross examination came to be conducted on above witnesses, their line of defence has not been put forward either in the form of questions or in the form of suggestions to those witnesses. Be that as it may be, but the law expects 16 CC 12779/2007 that the prosecution has to establish the case beyond reasonable doubt.
17. I have carefully considered the Ex.P1 to Ex.P
14. I have carefully gone through the contents of said documents. Although Ex.P4 being an inspection report, it is a crucial document in this matter, although it specifies some estimation as to monetary loss allegedly suffered by Government at the instance of accused, allegedly through their said acts, law expects that the contents of the inspection report shall be established in accordance with law to be true. Except the witnesses mentioned herein above, no other witnesses have been examined by the prosecution. Although many of the witnesses mentioned herein above have been dropped because of the failure of the prosecution to secure their presence, still there has been no attempt to examine them.
17 CC 12779/2007
18. On the basis of Ex.P8 this court can believe that internet connection has been taken in the name of accused No.1 herein from Airtel Company. But mere production of the documents to show that internet connection has been obtained by the accused, does not suffice to say that the accused has committed the offences aforementioned. Submission of inspection report and relying on the documents which show that there was an internet connection, by themselves do not establish the case alleged against the accused. Ex.P9 is the attested copy of information pertaining to IP address and it specifies some technical terms. But to explain as to what exactly the Ex.P9 is, the prosecution should have examined a witness, who can depose about it.
19. Mere production of call logs does not prove that those calls were international calls and were converted to local calls. Prosecution did not explain as to how this court has to believe that the call logs 18 CC 12779/2007 present in Ex.P9 are converted international calls and also that they have been converted for illegal gain. Although it specifies that the device used is a type of land line connection, in what way the said device has been used to convert the calls to local calls has not been stated. Further the logs present in Ex.P9 specify no names of accused herein and they do not specify as to in what way the calls came to be converted to local calls.
20. Although diagrams have been furnished by way of evidence vide Ex.P10 and Ex.P11, but to explain the same a person, who has prepared the said diagram and submitted to the court should have been examined. Because the diagram and logs have been attested and submitted by one N.V.Krishna Kumar, Director of Telecom Enforcement. He has not been examined.
19 CC 12779/2007
21. Therefore, in the absence of the evidence of the said person, it is difficult to believe the contents of these documents and the prosecution has not considered the aspect that the contents of Ex.P9 to Ex.P11 are inclusive of technical terms. But prosecution did not think of examining an expert or some person who is capable of giving evidence regarding the contents of those documents. Therefore, the evidence adduced by the prosecution is incomplete.
22. In so far as accusation made against the accused which is punishable under section 120B of IPC is concerned, it wholly speaks about the punishment for the offence called criminal conspiracy. Suffice it to say that the law is very clear to the effect that the criminal conspiracy, to commit the offence is a punishable thing. Further, the criminal conspiracy to commit the offence which is punishable beyond 2 years shall, require a punishment in the said manner 20 CC 12779/2007 if such accused abetes to commit such offence. In the case on hand, it is the case of the prosecution that both accused herein conspired together to commit aforementioned offence and they are liable to be punished etc.
23. But except seizure of the devices Mo.No.1 to 4 and production of Ex.P8 to show that the accused had a connection from Airtel company, no material is submitted to the court by way of evidence to prove specifically that both accused herein have conspired to convert the international calls to local calls and to put the nation to monetary loss.
24. It is no doubt true that the offence which would touch the exchequer of the nation has been alleged. Mere alleging that the accused have committed aforementioned offence does not suffice to believe that the accused have committed offence of said nature. It 21 CC 12779/2007 is apt to say that once prosecution alleges a case of any nature against accused, duty will be simultaneously cast upon the prosecution to show and to establish in the court that the accused have committed such offences and the prosecution shall adduce incriminating evidence against such accused which would certainly of a character which inspires the confidence of the court. Therefore, in the absence of evidence, there is no impediment for this court to say that the prosecution has miserably failed to establish in the court that accused No.1 and 2 herein hatched a conspiracy to commit the aforementioned offences.
25. In so far as offence punishable under section 420 of IPC is concerned, the prosecution is duty bound to prove that the accused have dishonestly deceived the property of the central Government by way of converting international calls to local calls using Mo.1 to 4 and accordingly they have earned 22 CC 12779/2007 illegal profits and they shall be punished for the offence punishable under section 420 of IPC.
26. But as discussed herein above, although prosecution has been successful in showing Mo.1 to 4 and Ex.P8 the Airtel connection document pertains to accused, they do not suffice to believe that the accused have cheated the central government and have played fraud by using Airtel connection, to convert international calls to local calls and accordingly has put the Central Government to monetary harm and dishonestly concealed the alleged fact of conversion of international calls to local calls. But prosecution did not adduce any evidence to believe that Mo.1 to 4 have been used in the said regard.
27. Though the aspect as to availment of services of Airtel to the premises of accused can be believed with 23 CC 12779/2007 the help of Ex.P8, but usage of such Airtel services for the purpose of conversion of international calls to local calls cannot be believed at all as aforesaid. Because the prosecution, in the case, has not clarified whether any information as a matter of investigation has been taken by Airtel company's authorised officer soon after noticing the alleged crime of accused. In the absence of explanation to the said effect and in the absence of evidence to the said effect, through Airtel services accused have converted calls without license of the concerned authority etc, cannot be believed at all.
28. Mere establishing the aspect of availment of services as to internet from particular company, does not establish any case at all. Prosecution shall establish the case alleged without giving scope for any doubts at all. But in the case on hand, although prosecution has alleged that the accused have converted the international calls to local calls, in what 24 CC 12779/2007 way the Airtel services have been used for the said purpose, how said devices have been used for the said purpose, how both accused allegedly managed to convert international calls to local calls etc have not been stated clearly in the case, in any stage.
29. Further, if the said services have been used for the said purpose, whether said aspect has been noticed by said company being the service provider, has not been stated clearly by the prosecution. Further the prosecution has not stated whether after noticing the crime at the instance of accused allegedly, has it conducted any investigation or enquiry from the said company also has not been stated in the case and same is a major mistake on the part of the IO. In a serious case like this. although as per the evidence of both PW1 and 2, it is clear that for half an hour after reaching the establishment of accused, they did not allow these PW1 and 2 inside. But still they could able to seize the properties 25 CC 12779/2007 mentioned in PF.No.170/2006 in this matter and the prosecution should have explained in what way those devices are useful and in what way the calls were being converted. If any calls were converted, atleast there shall be original call logs. Though the logs relating to converted calls may be erased but original calls which are international in nature shall certainly be monitored. Therefore, what prevented the prosecution to submit before the court by way of evidence the said logs also has not been explained. What was the difficulty in examining the persons, one who maintain such international calls logs also has not been explained. Therefore, this court opines that there is no material on record at all to believe that the accused herein have gained illegally using internet services of the said company and they have put the nation to the monetary loss to the said tune etc and this court has noticed no materials at all and the inspection report specifies that the said alleged phone 26 CC 12779/2007 calls conversion set up had been run for 44 days at the instance of accused.
30. The evidence should have been adduced showing the set up atleast. If at all PW1 and 2 have conducted the raid, they should not have been made to wait for half an hour outside the premises. They should have readily with authority could have noticed illegality if any in the said premises. Therefore, it cannot be said to be a raid and it is a visit simplicitor though inspection report vide Ex.P3 has been submitted, atleast the person who has opined with technical knowledge that Mo.1 to 4, the properties aforementioned have been used for commission of said crime, should have been examined. It is no doubt true that the person, one who has prepared ex.P3 is the PW2 in the case. But he has pleaded his ignorance as to the contents of Ex.P1 and pleading of his such ignorance to the said effect cannot be considered as a stray admission at all, 27 CC 12779/2007 keeping in mind the status of the said witnesses. Thereby the answer given in his cross examination has rendered Ex.P1 useless to incriminate the accused in the matter. He is none other than Divisional Manager, Telecom Vigilance, Telecom Monitoring cell and he has deposed that using properties mentioned in SI.No.1 of P.F.No.170/2006, accused have committed the said crime. He has further deposed that he had credible information regarding the same. Though he cannot be expected to reveal the source of his information and atleast such information should have been put forward before the court by way of evidence. Therefore, inspite of seizure of Mo.1 to 4, although they have been seized in the premises of accused as per Ex.P1, still the prosecution has not adduced any evidence to convince the court that those devices were being used for the purpose of said illegality alleged. 28 CC 12779/2007
31. Therefore, answers given by the PW2 during his cross examination is highly contrary to what is present in Ex.P1. He has answered that accused have disconnected those equipments as on the date of their raid, the call logs were erased etc. But what prevented him to retrieve the information has not been explained either in Ex.P3 i.e., inspection report or in his evidence. Importantly , in his inspection report he has stated that accused No.2 made them to wait in the reception for about 30 minutes. If PW2 was present there for the purpose of commission of raid, why did he wait with his team also has not been explained and without any credible material, in the inspection report it is stated that there is a possibility of concealing the network and suppressing the alleged operation etc. But how there is a possibility of concealing network and in what way and how the suppression of an illegal operation is possible, have not been stated clearly.
29 CC 12779/2007
32. Therefore, the inspection report includes only some presumptory aspects. Because the entire inspection report is based on some presumptive and anticipated possibilities of commission of crime, connectivity diagram and setting up of illegal structure technicalities etc. Therefore, based on the same the inspection report cannot be considered to be conclusive. It is stated in the case that the accused had no license to convert such calls. But in what way Ex.P9 is useful to establish the case against accused also has not been stated by the prosecution. Therefore, for all the collective reasons mentioned herein above, the offences alleged against the accused cannot be believed at all and accordingly it cannot be stated that the accused have cheated the Government. Therefore, for all the above reasons collectively the above point deserves to be answered in the Negative and Point No.1 is accordingly answered in the Negative.
30 CC 12779/2007
33. For the purpose of clarity Section 415 and 420 of IPC is extracted herein below;
Section 415 of IPC Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat".
Section 420 of IPC Cheating and dishonestly inducing delivery of property.--Whoever cheats and thereby dishonestly induces the person deceived to deliver any property to any person, or to make, alter or destroy the whole or any part of a valuable security, or anything which is signed or sealed, and which is capable of being converted into a valuable security, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
34. Point No.2: In so far as point No.2 is concerned, the prosecution is duty bound to establish that both accused conspired to commit the offences 31 CC 12779/2007 aforementioned. But for all the foregoing reasons discussed while discussing point No1 herein for the very same reasons, prosecution can be said to have failed to establish the guilt alleged against accused. Therefore, material which would incriminate accused for the offence called criminal conspiracy is not forthcoming on record and also in the evidence of the prosecution. Thus, prosecution has miserably failed to establish the case against accused to the said effect. Hence, Point No.2 is answered in the Negative.
35. For the purpose of clarity Section 120B of IPC is hereby extracted as below ;
Section 120B of IPC Punishment of criminal conspiracy.-- (1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death, 2[imprisonment for life] or rigorous imprisonment for a term of two years or upwards, shall, where no express provision is made in this Code for the punishment of such a conspiracy, be punished in the same manner as if he had abetted such offence.(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to 32 CC 12779/2007 commit an offence punishable as aforesaid shall be punished with imprisonment of either description for a term not exceeding six months, or with fine or with both.]
36. POINT No.3: In so far as the offence punishable under section 379 of IPC, though the prosecution has alleged that using the properties stated in the aforementioned PF, the accused have made illegal gain and they have converted international calls to local calls etc. There is nothing on record to show that calls were really converted. Usage of Mo.1 to 4 is not established. Because though the prosecution has alleged that those properties were used by accused to commit the aforementioned offences, still the above witnesses only have answered in their evidence that by the time they entered inside the said premises of accused, the equipments were kept unused. Hence it is clear that when the alleged raid was conducted those properties were not in use.
33 CC 12779/2007
37. Therefore, when there is nothing on record which prove that those devices were really used, question of believing that those properties have been used to commit aforementioned offences doesnot arise. Thus the evidence, for all the foregoing reasons, does not inspire the confidence of this court to believe the case alleged against accused. Though it has been specifically alleged that using the property's mentioned in S.I.No.1 of Column No.4 of the said PF, the accused have committed the said offence, still no material has been placed on record to believe the usage of said device. Further though above witnesses have deposed that, as they disconnected devices as on the time of the raid, call logs have been erased etc, the prosecution should have submitted before the court, the evidence which would show that the call logs were really erased. Therefore, as there is nothing on record to believe that at the instance of both accused the logs were erased, entire case of the prosecution has become weak. Therefore, for want of 34 CC 12779/2007 evidence and for the foregoing reasons collectively, case regarding section 379 of IPC alleged against accused, also cannot be believed at all. Hence, Point No.3 is answered in the Negative.
38. For the purpose of clarity Section 379 of IPC is extracted herein below;
Section 379 of IPC Punishment for theft.-- Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
39. Point No.4 : Prosecution has alleged that the accused are liable to be punished for the offence punishable under section 20 of Indian Telegraph Act, 1885, the duty is heavily cast upon the prosecution to prove the same.
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40. For the purpose of clarity section 20 of Indian Telegraph Act, 1885 is extracted below; Section 20(1) in The Indian Telegraph Act, 1885(1) If any person establishes, maintains or works a telegraph within [India] in contravention of the provisions of section 4 or otherwise than as permitted by rules made under that section, he shall be punished, if the telegraph is a wireless telegraph, with imprisonment which may extend to three years, or with fine, or with both, and, in any other case, with a fine which may extend to one thousand rupees.1[20. Establishing, maintaining or working unauthorized telegraph.
41. In the case on hand, there is nothing on record to believe that accused have contravened section 4 of the said act. There is nothing on record to believe that Telegraph ( Wireless Telegraph) has been used unauthorizedly for the said purpose. Further it is not the case of the prosecution that the accused are habitual offenders or otherwise. Therefore, for want of evidence, case to the above effect also cannot be believed because prosecution has failed to prove that 36 CC 12779/2007 accused have established, maintained, worked the telegraph within the territory of India in contravention of the law contemplated in section 4 of the said act, or otherwise than as permitted by the rules made in the said section and they established, maintained, worked unauthorized Telegraph. Therefore, when the usage of very device allegedly seized by the prosecution itself being not proved, it cannot be said that the accused have committed the offence punishable under section 20 of the said Act in contravention of section 4 of the said Act.
42. For the purpose of clarity Section 4 of Indian Telegraph Act, 1885 is hereby extracted as below; Section 4 in The Indian Telegraph Act, 18854 Exclusive privilege in respect of telegraphs, and power to grant licences. -- [(1) ] Within [India], the Central Government shall have the exclusive privilege of establishing, maintaining and working telegraphs: Provided that the Central Government may grant a licence, on such conditions and in consideration of such payments 37 CC 12779/2007 as it thinks fit, to any person to establish, maintain or work a telegraph within any part of [India]: [Provided further that the Central Government may, by rules made under this Act and published in the Official Gazette, permit, subject to such restrictions and conditions as it thinks fit, the establishment, maintenance and working--(a) of wireless telegraphs on ships within Indian territorial waters [and on aircraft within or above [India], or Indian territorial waters], and(b) of telegraphs other than wireless telegraphs within any part of 2[India].
43. Therefore, for want of evidence the case to the said effect cannot be believed.
44. In so far as the offences alleged against the accused which are punishable under section 3 and 6 of Indian wireless Act, are concerned, particularly, the offence punishable under section 3 of Indian Wireless Act, 1933 is concerned, the prosecution should have proved that the accused herein have not obtained the license to establish, to maintain and to work Wireless Acts and therefore they shall be punished in accordance with section of Indian 38 CC 12779/2007 Wireless Act, 1933. The prosecution has alleged that the accused did possess wireless apparatus without license and therefore, they should be punished under section 6 of Indian Wireless Act, 1933 etc.,
45. For the purpose of clarity Sections 3 and 6 of Indian Wireless Act, 1933 are hereby extracted below;
Section 3 in The Indian Wireless Telegraphy Act, 1933. Prohibition of possession of wireless telegraphy apparatus without license.--Save as provided by section 4, no person shall possess wireless telegraphy apparatus except under and in accordance with a license issued under this Act. Section 6 in The Indian Wireless Telegraphy Act, 19336. Offence and penalty.--(1) Whoever possesses any 1[wireless telegraphy apparatus, other than a wireless transmitter,] in contravention of the provisions of section 3 shall be punished, in the case of the first offence, with fine which may extend to one hundred rupees, and, in the case of a second or subsequent offence, with fine which may extend to two hundred and fifty rupees. 1[wireless telegraphy apparatus, other than a 39 CC 12779/2007 wireless transmitter,] in contravention of the provisions of section 3 shall be punished, in the case of the first offence, with fine which may extend to one hundred rupees, and, in the case of a second or subsequent offence, with fine which may extend to two hundred and fifty rupees." 2[(1A) Whoever possesses any wireless transmitter in contravention of the provisions of section 3 shall be punished with imprisonment which may extend to three years, or with fine which may extend to one thousand rupees, or with both.]2[(1A) Whoever possesses any wireless transmitter in contravention of the provisions of section 3 shall be punished with imprisonment which may extend to three years, or with fine which may extend to one thousand rupees, or with both.]"(2) For the purposes of this section a Court may presume that a person possesses wireless telegraphy apparatus if such apparatus is under his ostensible charge, or is located in any premises or place over which he has effective control.(3) If in the trial of an offence under this section the accused is convicted the Court shall decide whether any apparatus in respect of which an offence has been committed should be confiscated, and, if it so decides, may order confiscation accordingly.
46. Therefore, all the foregoing reasons the usage of devices being not proved by the prosecution beyond all reasonable doubt, mere possession simplicitor as 40 CC 12779/2007 to the devices does not mean that those devices have been used for the purpose of commission of crime alleged.
47. Moreover, prosecution has not established with cogent evidence that those devices belong to accused. Though in the inspection report many aspects have been stated regarding the use of those devices and the title of accused on those properties, still entire record is silent, entire evidence is silent to the effect, that those devices belong to accused. Therefore, for want of evidence and for the foregoing reasons collectively the case of the prosecution becomes very weak.
48. PW2 as aforementioned has rendered Ex.P1 useless for the purpose of this matter by admitting that he does not know its contents. Therefore, as aforesaid above admission cannot be considered as a stray admission in nature. Therefore, for want of 41 CC 12779/2007 incriminating and cogent evidence, as discussed herein above, case of the prosecution regarding the usage of those devices at the instance of accused for said purpose cannot be believed. Therefore, the above point is hereby answered in the Negative.
49. Learned Advocate appearing for accused has submitted a memo furnishing authorities of Hon'ble Supreme Court and of High Court of Mysore. He relies on them which are reported in 1975 Crl.L.J.976, a case between Hirianna Shetty V/s State of Mysore and on the judgment reported in 2018 Crl.L.J.4405 a case between Shanker V/s State of Madhyapradesh connected with Dhobi V/s State of Madhya Pradesh.
50. Above judgment of Hon'ble High court of Mysore pertains to a case related to an offence punishable under section 324 of IPC and it is regarding further on 42 CC 12779/2007 non examination of important witness and also relating to proving contradictions. The above mentioned judgment of Hon'ble Supreme court is pertaining to evidence of prosecution witnesses being not corroborating with materials relied upon by prosecution.
51. For the reasons foregoing, the judgments relied upon by the learned advocate appearing for the accused are of no help to the case because this is not a case where the prosecution is relying on minor contradictions or omissions and also on the question of corroboration of different evidence with the evidence of the concerned witnesses. This court is of the above opinion that the prosecution does fail to adduce incriminating and satisfactory evidence against accused. Therefore, this court has opined as above with respect to the above judgments. 43 CC 12779/2007
52. Point No.5 : The circumstances warrant the following orders for the foregoing reasons;
ORDERS Invoking section 248(1) of Cr.P.C, both accused Nos.1 and 2 are hereby acquitted of the offences punishable U/S.420, 120(b), 379 R/W Section 34 of IPC, together With Sections 4 and 20 Of Indian Telegraph Act, 1885 R/W Sections 3 and 6 Of Indian Wireless Act, 1933.
The bail bonds and sureties bonds of accused Nos.1 and 2 will be in force till completion of appeal period, thereafter, they shall stand cancelled.
In so far as properties mentioned in PF No.170/2006 in S.I.No.1 to 4 ( Mo.1 to 4 ) are concerned as there is no claim since 2007 till date on them, they are hereby directed to be confiscated to state. Vide orders dated 05/08/2006, through my 44 CC 12779/2007 learned predecessor, Mo.1 to 4 aforementioned came to be handed over to the custody of Police concerned, of Kormangala. IO is hereby directed to handover the same for the purpose of confiscation, to the concerned forthwith.
(Dictated to the stenographer, typed by him, corrected by me and then pronounced in the open court today, that is on 22032021) S.S.BHARATH XLI (41ST) ACMM, BENGALURU 45 CC 12779/2007 ANNEXURES List of witnesses examined on behalf of prosecution: PW.1 : Kallappa Ramachandra Bangi PW.2 : Ramakrishna Majety List of documents marked on behalf of the Prosecution: Ex.P.1 : Mahazar Ex.P.1(a) : Signature of PW1 Ex.P.1(b) : Signature of PW2 Ex.P.1(c) : Signature of CW5 Ex.P.2 : Complaint Ex.P.2(a) : Signature of PW2 Ex.P.3 : Covering letter Ex.P.3(a) : Signature of PW2 Ex.P.4 : Inspection Report Ex.P.4(a) : Signature of PW2 Ex.P.5 : Authorization letter to do the Vigilance inspection.
Ex.P.6 : Letter of Government of India regarding the compliance of license Condition. Ex.P.7 : Letter dated 30/11/2004 regarding the functioning of Vigilance Ex.P.8 : True copy of application form and Letter from Airtel Ex.P.9 : Configuration obtained from the Quintum Tenor Gate way.
Ex.P.10 : Network Diagram showing the details of illegal network.
Ex.P.11 : Illegal telecom calls of international calls Ex.P.12 : Illegal telecom path through which 46 CC 12779/2007 international calls witness be done. Ex.P.13 : The relevant Section IV of Indian Telecom Act Ex.P.14 : The relevant Sections 3 and 6 of Indian Wireless Telegraphy Act.
List of witnesses examined on behalf of accused : NIL List of documents marked on behalf of the accused : NIL Materials Marked on behalf of prosecution MO1 : Quintam Tenon Axseries MO2 : Modem Mrotek Sami 52 MO3 : Router Cisco 2500 MO4 : DLink Fast Internet Switch S.S.BHARATH XLI (41ST) ACMM, BENGALURU;