Delhi District Court
State vs William Dean & Ors on 25 July, 2018
IN THE COURT OF MS. POOJA TALWAR
CHIEF METROPOLITAN MAGISTRATE (SOUTH)
SAKET DISTRICT COURTS, DELHI
In the matter of :
State
Vs.
William Dean & Ors.
FIR No. 575/2004
P.S R.K. Puram (CB)
JUDGMENT
1. Sr. No. of case 2034319/2016
2. Date of institution 20.11.2007
3. Name of the complainant Sh. Kewal Krishan Nayyar
Assistant Vigilance Officer,
FIR No. 575/2004 PS R.K. Puram (CB) Page- 1 of 34
MTNL, Khursheed Lal Bhawan,
Janpath, New Delhi.
4. Date of commission of offence In July, 2004 till 04.09.2004
5. Name of accused 1. William Dean
S/o Late Daniel Dean
R/o House No. 3/22, Shanti
Niketan, New Delhi.
2. Narender Pal
S/o Sh. Albert
R/o H-426, Palam Vihar,
Gurgaon, Haryana. (convicted
vide order dated 08.08.2014)
3. Kapil Kumar Gupta
S/o Late Prem Kumar Gupta
R/o 13/79, President Estate, New
Delhi. (convicted vide order
dated 08.08.2014)
4.Rainbow Christian Academy
Pvt. Ltd.
6, 7 & 11, First Floor, Mini
Market, Nanakpura, New Delhi
6. Offence complained of U/s 420/418/423/120B IPC read
with section 4/20/20A/25 Indian
Telegraph Act, 1885
i7. Plea of accused Pleaded not guilty
8. Date of reserving the judgment 21.07.2018
9. Final order Acquitted
10 Date of such judgment 25.07.2018
FIR No. 575/2004 PS R.K. Puram (CB) Page- 2 of 34
BRIEF STATEMENT OF REASONS FOR
THE DECISION OF THE CASE
1. The story of the prosecution is that accused persons were found running unauthorized and illegal telephone exchange secretly during the raid conducted by the officials of MTNL, VSNL and DOT including the complainant and accused Kapil Kumar Gupta and Narender Paul were arrested from the spot. Further, a team of experts was constituted and it jointly gave observation that accused M/s. Rainbow Christian Academy Pvt. Ltd. had taken Internet Leased Line (ILL) from VSNL and connected it to leased line modem of RAD make, which was further connected to CISCO Router and that was further connected to STS TELES VOIP gateway. Further, it is observed that two ISDN PRI Lines of MTNL having numbers 24102392 and 24102393 were terminated on Real time NTU E1 modem, which was further connected to VOIP Gateway. Further, the FIR No. 575/2004 PS R.K. Puram (CB) Page- 3 of 34 complete set up was found in alive condition and on verifying the calling pattern and call detail record, it was found that continuous calls were being originated from various local numbers of Delhi and on contacting some of the call numbers obtained from call detail record, it was found that they received calls from abroad whereas the call detail shows local calls in the printout of the above mentioned PRI ISDN numbers. Thus, the said set up was established to bypass the gateway of legal ILD operators depriving them as well as BSO including Government, MTNL and others of legitimate revenue in respect of handling of international calls and on calculating, the national loss because of said set up was Rs. 39,85,627/-. It was further found that PRI Lines were obtained by falsely mentioning that these would not terminate on any other network and further false undertaking was given to VSNL that Internet circuit will not be interconnected to EPABX/EPAX/dealer board of MTNL/BSNL/Private of both ends. FIR was registered and investigation was carried out.
2. Provisions of Section 207 Cr. P. C. were complied with. On appearance of accused persons before Court and prima facie case having been made out, charge for the offence of under FIR No. 575/2004 PS R.K. Puram (CB) Page- 4 of 34 section 20 of Indian Telegraph Act, 1885 read with section 34 IPC was framed against accused Narender Paul and Kapil Kumar Gupta. Separate was framed against accused William Dean and Rainbow Christian Academy Pvt. Ltd through its Director William Dean for the offence under section 418/420/34 IPC, section 20 of Indian Telegraph Act, 1885. It is pertinent to mention here that accused Narender Paul and Deepak Kumar pleaded guilty and were accordingly convicted for the offence under section 20 of Indian Telegraph Act vide order dated 08.08.2014.
3. In order to prove its case, the prosecution examined 14 witnesses in all.
4. Sh. Kewal Krishan, Retd. Senior Divisional Engineer was examined as PW1. He deposed that on 03.09.2004, he was posted as Assistant Vigilance Officer, MTNL, he was informed by his General Manager that two PRI Lines bearing No.24102392 and 24102393 were being used for forwarding illegal international calls through international lease lines of VSNL. They put the numbers on observation and it was observed that calls were being made regularly without break. The premises was checked and found closed, though the FIR No. 575/2004 PS R.K. Puram (CB) Page- 5 of 34 printout of the calls show that calls were still going on. Same created suspicion of being misused. He further directed him to take up the issue with the police authority alongwith Director, Vigilance DOT and VSNL Staff. A written complaint was given to police vide Ex.PW1/A wherein it was alleged that an illegal network was being operated at Mini-Market, Nanakpura in the name of Rainbow Christian Academy Pvt. Ltd. Accordingly, a raiding party was prepared and he alongwith staff of DOT, VSNL reached the address given above on the late night of 03.09.2004 only and found the premises locked. Premises was kept under surveillance and after some time two persons i.e. accused Narender Paul and Kapil Kumar Gupta (already convicted) entered into premises. A joint inspection report was prepared by him vide Ex.PW1/B. Layout plan of illegal equipments and the illegal equipments memo was prepared vide Ex.PW1/C. IO had seized the case properties vide seizure memos Ex.PW1/D, Ex.PW1/E and Ex.PW1/F. All the documents were seized vide seizure memo Ex.PW1/F mentioned at serial No.1, 3, 5, 6, 9 to 15 vide Mark X and documents at serial No. 2, 4, 7, 8 vide Ex.P1 to P4. IO arrested both accused and conducted personal search vide memos FIR No. 575/2004 PS R.K. Puram (CB) Page- 6 of 34 Ex.PW1/G to Ex.PW1/J. IO recorded his statement. Witness correctly identified both accused Narender Paul and Kapil Kumar Gupta before the court.
5. Sh. G.S. Sharma, Legal Counsel, TATA Communications Ltd. (Earlier known as VSNL), Bangla Sahib Road was examined as PW2. He deposed that on 03.09.2004, he while working as Manager (Vigilance) in VSNL associated in conduct of joint inspection of an illegal telecom setup being run by M/s. Rainbow Christian Academy Pvt. Ltd. at 6-7, 11, First Floor, Mini Market, Nanakpura. IO also recorded his statement immediately after inspection in the same night. Later on 10.09.2004, on demand of police, he supplied entire documents regarding ILL taken by accused persons from his company. He produced the original record regarding ILL (Internet Lease Line) of M/s. Rainbow Christian Academy Pvt. Ltd. and related to service commissioning, service handover and payment made by M/s. Rainbow Christian Academy Pvt. Ltd. The documents included customer order form for ILL service of 512 kbps connection and another customer order form for ILL service of 1 mbps connection vide Ex.PW2/A and Ex.PW2/B including other copies of documents supplied by M/s. Rainbow Christian FIR No. 575/2004 PS R.K. Puram (CB) Page- 7 of 34 Academy Pvt. Ltd. at the time of applying for connection and while upgrading the service from 512 kbps to 1 mbps. He had given the documents as demanded by IO vide his letter dated 10.09.2004 vide Ex.PW2/C.
6. Sh. Vinod Kumar Handoo, Senior Manager, TATA Communication Ltd. (Earlier known as VSNL) was examined as PW3. He deposed that on 03.09.2004, he was working as Senior Manager, VSNL. That day he received an information from Sh. G.S. Sharma, legal counsel of then VSNL regarding his indulgence in the raiding team which had to be constituted to raid of an illegal telephone set up on VSNL Internet Lease Line (ILL) being run up M/s. Rainbow Christian Academy Pvt. Ltd. located at Nanakpura. Thereafter, he alongwith Sh. G.S. Sharma reached at Crime Branch office where officials from MTNL and DOT met them namely Sarvendra Singh and other officers from MTNL, Vigilance. Thereafter, by the assistance of police officials a raiding party was constituted and thereafter, in the night hours at about 10.30 pm. raid was effected at M/s. Rainbow Christian Academy Pvt. Ltd. and they entered in the premises at about 11.00 pm. In the academy in a cabin accused Narender and Kapil Kumar were found. During inspection it FIR No. 575/2004 PS R.K. Puram (CB) Page- 8 of 34 was observed that M/s. Rainbow Christian Academy Pvt. Ltd. had taken two numbers of ISDN of MTNL consisting of 30 channels each and interfaced with VSNL Leased Line with speed initially of 512 kpbs which was upgraded to 1 mbps. After inspection of the premises, a layout digram was prepared and found that VSNL Internet Leased Line was illegally connected with the MTNL PRI Lines. VSNL Internet Leased Line was sold to the party for using only Internet services. Thereafter, an inspection report was prepared. He exhibited layout diagram of the connectivity found at the above said premises vide Ex.PW3/1 and call verification report vide Ex.PW3/2. Accused William Dean was found operated illegal call termination centre by causing cheating to VSNL by diverting illegally international calls through his illegal equipment resulting revenue loss to VSNL. At that time, it was observed that around more than 2 lac calls were made through this illegal set up.
7. Sh. Sarvendra Singh, Dy. Director General, Telecom Enforcement and Resource Monitoring Cell, Department of Telecom, Shimla was examined as PW4. He deposed that on 03.09.2004, he was posted as Director (Vigilance, Inspection) in FIR No. 575/2004 PS R.K. Puram (CB) Page- 9 of 34 Department of Telecom, Ministry of Communication, IT. That day he alongwith Sh. K.K. Nayar(Assistant Vigilance Officer, MTNL), Mr. G.S. Sharma, Manager, Vigilance (VSNL), Mr. Harshvardhan Singh, Director (Vigilance, Technical) from DOT and more officers from VSNL went to office of Anti-Extortion Cell, R.K. Puram. A raiding party was formed there. At around 10.30 pm they reached house No.6, Mini Market, Nanakpura and police officials made a trap. At around 11.00 pm they saw that a door of M/s. Rainbow Christian Academy Pvt. Ltd. situated at First Floor opened and two persons entered. Immediately they all raided M/s. Rainbow Christian Academy Pvt. Ltd. and found two persons there on back side cabin. They found one illegal telecom set up for receiving international telephone calls and distributing it in or around Delhi as local call. The set up not only caused revenue loss of about 39 lakhs but also posing security threat as calls handled by this set up could not be monitored by security agency. Said set up was having sophisticated equipments, Internet Lease Line from VSNL, two ISDN PRI (30 channels each) were connected. A layout diagram was prepared at the spot and technical inspection report was also prepared and signed by him FIR No. 575/2004 PS R.K. Puram (CB) Page- 10 of 34 alongwith other officers. Set up was dis-mental and equipments were seized by the police. Call verification report was prepared and call detailed record of MTNL PRI No's 24102392 and 24102393 were obtained on 03.09.2004 from MTNL vide Ex.PW4/1 and Ex.PW4/2.
8. Sh. Harsh Vardhan Singh was examined as PW5. He deposed on the same liens as PW4.
9. Ct. Vijay Singh was examined as PW6. He deposed that on 18.09.2004, he was posted as Constable at Anti Extortion Cell, Crime Branch R.K. Puram Sector-8, New Delhi. On that day he had accompanied IO SI Arvind Kumar to Sanchar Bhawan, Ashoka Road where Director Vigilance Sh. Sarvender had handed over two documents to IO. IO took the same into his possession vide seizure memo Ex.PW6/A. IO recorded his statement.
10. Sh. Rajinder Singh was examined as PW7. He deposed that he owned a property i.e. plot no. 6 & 7 and 10 & 11 Village Moti Bagh, Mini Market Nanakpura near Gurudwara Moti Bagh. He had given this property on rent to accused William Dean through a rent agreement vide Ex.PW7/A. Witness FIR No. 575/2004 PS R.K. Puram (CB) Page- 11 of 34 correctly identified the accused William Dean before the court.
11. Sh. Subhash Chand (Retd. SDE from MTNL) was examined as PW8. He deposed that on 13.09.2004, he was posted as Junior Telecom Officer (JTO). That day he had handed over two files alongwith Articles of Association and Memorandum of Association of M/s. Rainbow Christian Academy Pvt Ltd. to IO. IO took into the possession the same vide seizure memo Ex.PW8/A. The file no. PRI/393 dated 30.07.2004 having 28 pages Ex.P1 and Memorandum and Articles of Association of M/s. Rainbow Christian Academy Pvt. Ltd. Ex.PW8/B. The file no. PRI/394 dated 30.07.2004 having 8 pages Ex.P2.
12. Sh. Sunit Rakyan was examined as PW9. He deposed that his telephone no.26529586 which was in his mother's name Ms. Kusum Rakyan who expired in January, 2013. His brother's birthday was on 06th September who is residing in the Germany. He keeps calling them on different occasions. Their telephone did not have any caller ID facility, they only came to know about the calls from his brother on the said number since May, 2003. He stated that he did not know whether any statement was given to police by him or not.
FIR No. 575/2004 PS R.K. Puram (CB) Page- 12 of 34
13. ASI Lalit Kumar was examined as PW10. He deposed that on 08.09.2004, he alongwith SI Sunil Kumar, Ct. Rakesh and accused William Dean went to the Shimla, Himachal Pradesh and reached at the PS Shimla (East) where SI Sunil Kumar made DD entry. They reached at the residence of uncle of accused William Dean which was told by accused William Dean. There, accused William Dean brought a polythene bag which was kept under the bed in which two articles (gateway ) were found and inquired about the both gateway. There were some documents in the above said polythene bag. SI Sunil Kumar seized the same vide seizure memo Ex.PW10/A. He alongwith SI Sunil Kumar, Ct. Rakesh and accused William Dean returned to his office on the same date and deposited the above said seized article in the Malkhana. Thereafter, medical examination of accused William Dean was conducted at Safdarjung Hospital. Thereafter, they returned to his office at Sector-8, R.K. Puram. Accused William Dean was sent to lockup. IO recorded his statement in the Shimla.
14. ASI Brijesh Kumar was examined as PW11. He deposed that on 20.03.2007, as per directions of IO/Inspector Arvind Kumar, he visited Doorbhash Centre, Chanakyapuri and VSNL, FIR No. 575/2004 PS R.K. Puram (CB) Page- 13 of 34 Bangla Sahib Road. He received a packed packet from VSNL, Bangla Sahib Road and received four pages from Doorbhash Centre, Chanakyapuri. Thereafter, he came back at the above said office and handed over the said documents to IO. IO seized the documents vide seizure memo Ex.PW11/A. Four pages vide Ex.P1 to Ex.P4 and one closed packet which was received and handed over by him vide Mark PW11/A.
15. Inspector Sunil Kumar was examined as PW12. He deposed that on 04.09.2004, he joined the investigation. Inspector Arvind Kumar interrogated accused Kapil and Narender Paul in the office of AEC and recorded their disclosure statement. He exhibited disclosure statements of accused Kapil and Narender Paul vide Ex.PW12/A and Ex.PW12/B. In the evening, Inspector Arvind Kumar joined the accused William Dean in the investigation and on sufficient grounds arrested him vide arrest memo Ex.PW12/D. He prepared personal search memo of accused William Dean vide Ex.PW12/C. On 05.09.2004, Inspector Arvind Kumar carried out detailed investigation of accused William Dean and recorded his disclosure statement vide Ex.PW12/E. Again on 07.09.2004, supplementary disclosure statement of accused William Dean was recorded in FIR No. 575/2004 PS R.K. Puram (CB) Page- 14 of 34 his presence vide Ex.PW12/F. On 08.09.2004 in pursuance of disclosure statement of accused William Dean, he alongwith staff and accused William Dean went to Shimla where at his instance, one polythene bag containing two gateways and some incriminating documents were recovered from H-5, Opposite Masjid, Chota Shimla. There were some documents in the above said polythene bag. The two gateways alongwith polythene bag were taken into possession vide memo Ex.PW12/G. He recorded the statement of witnesses. The case property was deposited in the Malkhana. Further investigation of the case and accused William Dean were handed over to Inspector Arvind Kumar. One floppy bearing RATOTEC, GMBH, one cancelled cheque bearing No.896231, one passbook of account No.90882010033725 and one cheque book of account No.213-1521 in the name of accused, copy of Form No.23 of Rainbow Christian Academy Pvt Ltd., extract of the minute of meeting of board of director of Rainbow Christian Academy Pvt Ltd. dated 27.08.2004, letter dated 26.08.2004 to Registrar of Companies by Rainbow Christian Academy Pvt Ltd., one blank letter head of Rainbow Christian Academy Pvt Ltd., letter No.55-55699, copy of Form No.32 of company 55- FIR No. 575/2004 PS R.K. Puram (CB) Page- 15 of 34 55699, copy of balance sheet of Rainbow Christian Academy Pvt Ltd. as on 31.03.2003, an advice note dated 13.07.2004 of MTNL to Rainbow Christian Academy Pvt Ltd., a bill of BSNL, Nagpur in respect of telephone number 2584712 and documents of BSNL related to ILL to Rainbow Christian Academy Pvt Ltd. which were seized by him vide Ex.P5 and equipments/gateways vide Ex.PW12/P6.
16. Sh. Dinesh Prasad, Senior Section Supervisor, MTNL, Chankya Puri was examined as PW13. He deposed that he has been authorized by the DGM (Fin.) BCP, MTNL. In this regard, he produced an authority letter vide Ex.PW13/A.
17. Inspector Arvind Kumar was examined as PW14. He deposed that on 03.09.2004 at around 8.30-9.00 pm, the complaint was marked to him by the then ACP. After receiving the complaint, he enquired from the complainant about the contents and thereafter, sent a rukka Ex.PW14/A for registration of FIR through Ct. Neeraj. He alongwith Inspector Ajay Tomar, SI Manoj Kumar, SI Rajeev, Ct. Lalit Kumar and staff alongwith the complainant and his team reached at premises no.6,7,11, 1st Floor, Mini Market near Gurudwara, Nanakpura. After registration of FIR, Ct. Neeraj also reached there and gave FIR No. 575/2004 PS R.K. Puram (CB) Page- 16 of 34 him rukka and copy of FIR for further investigation of the case. Thereafter, he alongwith complainant and his team and his staff raided the abovesaid premises. There accused Narender Paul and accused Kapil Kumar Gupta (already convicted) were found present in the premises. The premises was inspected by the complainant, who was also a government servant i.e Assistant, Vigilance Officer, MTNL and by his team comprises of the official of VSNL and DOT. During inspection, they found illegal telephone exchange which was found by passing authorized gateways of ILD Operators thereby causing huge loss to the government and ILD Operators. The team provided him an inspection report. Thereafter, he seized all the relevant equipment and documents from the premises. He also prepared the site plan vide Ex.PW14/B. Accused Narender Paul and Kapil Kumar Gupta were arrested. On 04.09.2004, accused William Dean came to the Crime Branch Office and was arrested. His personal search was also conducted. He had also recorded disclosure statement of accused William Dean. Thereafter, accused William Dean was produced before Ld. MM and three days PC remand was obtained. During PC remand, supplementary disclosure statement of accused FIR No. 575/2004 PS R.K. Puram (CB) Page- 17 of 34 William Dean was recorded. Thereafter, accused William Dean alongwith SI Sunil Kumar and other police officials went to Shimla where accused got recovered gateway and certain other documents which were seized. During investigation, he had also collected the CDR of the number 24102392 and 24102393 from MTNL and he had also collected the documents from VSNL with regard to applications and letters written by accused William Dean alongwith some other documents relating to ILD Lines. Same were seized by him vide seizure memo Ex.PW14/C. He had also collected the print out sent by Sh. K.K. Nayyar in respect of last meter reading of aforesaid two numbers alongwith floppy. He seized them vide seizure memo Ex.PW14/D. The said meter reading Ex.PW14/E and the floppy Disket Ex.PW14/F. During the course of investigation, he had the documents with regard to PRI Lines from MTNL with regard to file no. PRI/393 dated 30.07.2004 and PRI/394 dated 30.07.2004 and seized them. He had also collected the copy of schedule-III regarding access deficit charge (ADC) and copy of letter no.813-7/2002-LR (Volume-II) dated 04.12.2002 and he seized them. These documents Ex.PW14/G. He had also collected the documents from Deputy Manager, Multiple Zones FIR No. 575/2004 PS R.K. Puram (CB) Page- 18 of 34 India Pvt. Ltd which were seized by him vide seizure memo Ex.PW14/H. He had also collected the Notional Loss Calculation Report from DOT Ex.PW14/I. The reply given by G.S. Sharma to him with regard to his query with respect to settlement rate between two countries vide reply Ex.PW14/J and the document attached with it Ex.PW14/K. He had also collected the payment details of abovesaid numbers from VSNL and MTNL and those documents were seized by him. The reply of G.S. Sharma, Manager, Vigilance, VSNL with regard to his query for certified copy of ILD license of VSNL, undertaking of M/s Rainbow Christian Academy Pvt Ltd and VSNL Modem vide reply Ex.PW14/L.
18. The entire incriminating evidence brought on record against accused William Dean was put to him and his statement under section 313 Cr.PC was separately recorded. It is stated by accused that he is innocent and has been falsely implicated in the present case. He further stated that he was neither the Director nor holding any office in company namely M/s. Rainbow Christian Academy Pvt. Ltd as he was only consultant giving his services to the company for setting up call centre and upon their instructions and authorization, telephone connection FIR No. 575/2004 PS R.K. Puram (CB) Page- 19 of 34 were applied in the name of the company. He did not know anything about misusing of the telephone connection above for the purpose of illegal telephone exchange. He further stated that he did not know what happened at the time of raid conducted by the police at the premises as he was not there on the said date. He signed the rent agreement for and on behalf of company upon the instructions of Director of the company.
19. I have heard Ld. APP for the State and Ld. counsel for the accused and have also perused the judicial file carefully.
20. The case of prosecution is that a complaint dated 03.09.2004 was filed by MTNL with Crime Branch alleging that 2 PRI (Primary Rate Interface) numbers viz. 24102392 & 24102393 provided to the subscriber i.e. Rainbow Christian Academy Pvt. Ltd were being illegally used for automatic switching of international calls received through certain international media may be Internet Lease Line or VSAT etc. It is further alleged that FNMR of these numbers revealed forwarding of huge number of outgoing calls through Delhi or its surrounding which were infact international calls being handled bypassing authorized gateway of ILD operators thereby causing huge loss/cheating of revenue of ILD/Telecom Operators besides FIR No. 575/2004 PS R.K. Puram (CB) Page- 20 of 34 committing offence under Indian Telegraph Act,1985 and IPC.
21. It is further alleged in the complaint that by using the aforesaid telephone connection the accused was forwarding huge number of outgoing calls through Delhi and its surrounding areas which were infact international calls being handled bypassing authorized gateway of ILD operators thereby causing huge loss/cheating of revenue to ILD/Telecom Operators besides committing offence under Indian Telegraph Act, 1885.
22. It is alleged that the accused William Dean alongwith other accused persons namely Kapil Kumar Gupta & Narender Paul hatched a conspiracy and leased two PRI Lines 2*30 channels) and one Internet Lease Lines of 1024 kbps from VSNL by making false declaration that these lines will not be interfaced with each other and set up an illegal telephone exchange for automatic switching of international incoming calls from abroad bypassing authorized gateway of VSNL to local subscriber in Delhi through PRI Lines by violating the provisions of Indian Telegraph Act, 1885 for wrongful gain and thereby causing wrongful loss to the Government of India/ILD/Telecom Operators to the tune of Rs. 39,85,627/-. FIR No. 575/2004 PS R.K. Puram (CB) Page- 21 of 34
23. The calculation with respect to notional loss was calculated on the basis of total meter reading of two PRI connections i.e 279135 and assumed duration of each call as 2 minutes and calculated total called minutes from PRI connection to be 559184 minutes assuming all outgoing calls to be incoming international call.
24. It is also alleged that the accused at the time of applying for the PRI/ISDN did not abide by the declaration made by him at the time of subscribing to the connection.
25. Before adverting to the facts of present case, it would be essential to understand what is a PRI Line?
26. A PRI (Primary Rate Interface) line is end to end digital circuit. It is a form of ISDN (Integrated Services Digital Network) line which is a tele communication standard that enables traditional phone lines to carry voice, date and video traffic, among others. A PRI line can connect to both Analog/Mixed EPABS systems and also the newer IP PBX systems. A PRI Card/Interface might be required to terminate the PRI circuit on the PBX. A PRI line can also be used to connect two PBX systems thereby providing 30 channels FIR No. 575/2004 PS R.K. Puram (CB) Page- 22 of 34 between them for interoperability.
27. Further, Internet telephony is a service to process and carry voice signals offered through public Internet by use of personal computers (PC) or IP based Customer Premises Equipment (CPE):-
(a) PC to PC: Within or outside India
(b) PC in India to telephone outside
(c) IP based H 323/ SIP terminal connected directly to ISP node to similar Terminals within or outside India.
28. Succinctly stated that the accused has been charged for running and establishing an unauthorized telephone exchange in contravention of Indian Telegraph Act for which an Internet Lease Line was obtained by inducing BSNL that circuit will not be interconnected to EPABS/EPX/Dealer Board of MTNL/BSNL/Private and both ends and also induced MTNL to provide connection of two PRI lines on pretext of running a call centre. It is also alleged against the accused that accused cheated VSNL and other international long distance, telecom operators by interfacing both PRI Link and ILL through high tech telecom equipments for receipt of international calls through ILL and its automatic switching via PRI Lines to local FIR No. 575/2004 PS R.K. Puram (CB) Page- 23 of 34 subscribers in Delhi and thereby causing wrongful loss to VSNL and other telecom operators.
29. As per the prosecution version, on receipt of complaint, a search was conducted at the premises of accused and co accused Narender Paul and Kapil Kumar Gupta were arrested. Accused William Dean was not arrested on the day of raid. Accused has been charged with the offence under section 20 of the Indian Telegraph Act for running establishing and maintaining an illegal telephone exchange in contravention of provision of section 4 of Indian Telegraph Act.
30. Section 4 and 20 are being reproduced herein under in order to prove the charge against the accused.
Section 4 Indian Telegraph Act reads as under:-
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 as it thinks fit, to any person to establish, maintain or work a telegraph within any FIR No. 575/2004 PS R.K. Puram (CB) Page- 24 of 34 part of India:
(a) of wireless telegraphs on ships within Indian territorial waters and on aircraft within or above India, or Indian territorial waters, and
(b) of telegraph other than wireless telegraphs within any of India. (2) The Central Government may, by notification in the Official Gazette, delegate to the telegraph authority all or any of its powers under the first proviso to sub-section (1).
The exercise by the telegraph authority of any power so delegated shall be subject to such restrictions and conditions as the Central Government may, by the notification, think fit to impose.
Section 20 Indian Telegraph Act reads as under:-
Establishing, maintaining or working unauthorized telegraph:- 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 rupee.
FIR No. 575/2004 PS R.K. Puram (CB) Page- 25 of 34
31. In order to bring home the charge under section 20 of the Indian Telegraph Act, prosecution was required to prove that the accused had maintained a telephone exchange in contravention of provision of section 4.
32. In order to prove the said offence, prosecution has examined PW1 Sh. K.K. Nayyar from MTNL, who is the complainant. The said witness has deposed that two PRI Lines were being used by the accused for forwarding illegal international calls through International Lease Lines of VSNL. The said witness admitted that no complaint was received by MTNL from any ILD/telephone operators of having suffered a loss on account of forwarding international calls. He further admitted that PRI lines are used for business purpose. He further admitted that TEC approved equipments were seized from the premises of accused.
33. PW2 Sh. G.S Sharma from VSNL admitted that the terms and conditions for use of connection is contained in Part C of document Ex.PW2/A. He was unaware about the restrictions on VOIP.
34. PW3 Sh. Vinod Handoo, Senior Manager from VSNL FIR No. 575/2004 PS R.K. Puram (CB) Page- 26 of 34 admitted that no condition is imposed upon a customer in respect with interconnectivity of VSNL and PRI Lines. He further admitted that TEC approved equipment is permitted to be used on ILL Lines. He further admitted that the equipments seized from the premises of accused was TEC approved. He further admitted that incoming calls in data form can be forwarded to other medium. He further admitted that call centres are permitted to use PRI Lines and ILL.
35. PW4 Sarvendra Singh, Deputy Director General from Department of Telecom admitted that VOIP is permissible. He further admitted that he did not provide any rules or instructions about misuse of ILL lines was provided IO. He further admitted that Part C of Ex.PW2/A does not contain any restrictions on use of VOIP. He further admitted that call forwarding is permissible.
36. PW5 Sh. Harsh Vardhan Singh, Director, Telecom admitted that no observation regarding the working of ILL upon the premises where the raid was conducted in respect to the calls were made. No terms and conditions of use of connection were shown to him.
37. Prosecution examined PW9 Sh. Sumit Rakyan to prove that FIR No. 575/2004 PS R.K. Puram (CB) Page- 27 of 34 he received international call on his phone through a local number by way of call forwarding in order to prove the offence of the accused. The said witness stated that they received calls from Germany from his brother who resides there on different occasions. His telephone does not have a caller ID facility so they do not get to know from where the call is received. He did not remember specifically whether he called his brother or his brother called on 06.09.2004.
38. PW14 Inspector Arvind Kumar is the IO. He admitted that no documents were collected from ROC to show that accused was Director of the company. He further admitted that the telephone lines were subscribed by the accused company for commercial purposes. He further admitted that no separate undertaking was provided to him by the subscriber. He further admitted that all the equipments seized from the premises of accused were legally permissible.
39. The accused has been charged with the offence under section 20 of Indian Telegraph Act for violation of provisions laid down under section 4 of the said Act. The document Ex.PW2/A is the customer order form for ILL service. As per the witnesses examined from MTNL and VSNL, the terms and FIR No. 575/2004 PS R.K. Puram (CB) Page- 28 of 34 conditions upon which the connection was provided to accused company are laid down in Part C. The perusal of Part C would show that none of the conditions so provided have been violated by the accused. Moreover, it is admitted by PW2 G.S. Sharma from VSNL as well as PW4 Sh. Sarvendra Singh that there were no restrictions on use of VOIP contained in Part C of the customer order form. The witnesses examined by the prosecution have failed to show that any actual loss caused either to MTNL or VSNL. It is admitted by PW1 that subscriber cleared all the dues to MTNL and no dues are pending. It is admitted by the IO that all the equipments seized from the premises of accused company were legally permissible. It is further admitted by witnesses that the loss claimed by the BSNL is done on the basis of outgoing calls. It is further admitted by PW4 that all the outgoing calls were treated as income International calls and accordingly the loss was calculated.
40. No witness has been produced by the prosecution to prove that the infact the international calls received by various people were actually the calls forwarded to the local number and thereby causing loss to either VSNL or any other telephone FIR No. 575/2004 PS R.K. Puram (CB) Page- 29 of 34 operator.
41. The complaint Ex.PW1/A filed by MTNL was based on the information received about use of automatic switching of International calls received through certain international media may have been Internet lease line or V SAT. Hence, the premise on which the investigation started was certain contravention or violation of provision laid down under the Wireless Telegraphy Act.
42. It is admitted by PW1 that no notice for search was given prior to inspection of the premises of the accused company which is in utter violation of rules 412,/421/423/424 and section 7 of Indian Wireless Telegraphy Act.
43. In view of foregoing discussion, prosecution has failed to prove that the accused has committed an offence under section 4 or section 20 of the Indian Telegraph Act, 1885.
44. Accused William Dean has been charged for the offence under section 418/420 IPC.
45. To bring home an offence punishable under section 418 IPC, the prosecution is to prove that: (a) that the accused was under
legal obligation or contractual obligation to protect the interest FIR No. 575/2004 PS R.K. Puram (CB) Page- 30 of 34 of some other person; (b) that the accused cheated that person,
(c) that cheating had relation to his legal or contractual obligation aforesaid; (d) that the accused did so with knowledge that in the process he was likely to cause wrongful loss to the person cheated.
The essential ingredients of section 418 IPC are as under:-
(i) that the accused was bound by law or legal contract to protect the interest of a person;
(ii) that the accused cheated such a person;
(iii) that such obligation related to the transaction involving the cheating;
(iii) that the accused did so having knowledge that by his act he was likely to cause wrongful loss to the person so cheated (and whose interests were bound to be protected by the accused).
Cheating has been defined in section 415 which is as follows:
a. The accused must have induced fraudulently of dishonestly a person, b. The deceived should be induced to deliver any property to any person or to consent that any person shall retain any FIR No. 575/2004 PS R.K. Puram (CB) Page- 31 of 34 property.
c. If the person deceived, must be intentionally induced by the wrong doer to do or omit to do anything he would not do or omit if such deceived person was not so deceived.
d. The deceived should suffer any damage or harm in body, mind, reputation or property by the deceitful act of the wrong doer.
e. A dishonest concealment of facts is also treated as a cheating.
Section 420 is an aggravated form of cheating. Indian Penal Code defines offence under section 420 IPC that 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 covered 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.
46. The prime requirement of section 418 is that the accused should be under a legal or contractual obligation to protect the interest of some other person.
FIR No. 575/2004 PS R.K. Puram (CB) Page- 32 of 34
47. In the instant case, it is alleged against the accused that the accused has given an undertaking dated 01.07.2004 by virtue of which he was bound to abide by the conditions mentioned in the said undertaking. The said undertaking though placed on record has not been proved as per law. The same is a photocopy document Even the columns have been left blank. The said undertaking has not been proved as per the provisions of Indian Evidence Act. Hence, the said document cannot be read in evidence against the accused.
48. None of the conditions mentioned in Part C of document Ex.PW2/A would bind the accused to protect the interest of the complainant. Hence, the accused has not been proved to be under any legal or contractual obligation to protect the interest of the complainant and therefore, cannot be said to have committed an offence under section418 IPC.
49. Similarly, the essential ingredients to bring home the charge under section 420 IPC against the accused also stands unproved. The accused has nowhere induced VSNL to provide the connection as it is admitted by PW2 that all the conditions were satisfied before the connection was provided to the accused. Even the entire dues have been cleared and there is no FIR No. 575/2004 PS R.K. Puram (CB) Page- 33 of 34 outstanding amount against the accused to either MTNL or VSNL.
50. There is no wrongful loss caused to VSNL who was the telephone operator of the accused. Hence, the accused cannot be said to have committed the offence under section 420 IPC once the prosecution has failed to prove the essentials of the said provision. Accused William Dean is accordingly acquitted for the offence under section 418/420/34 IPC read with section 20 of Indian Telegraph Act, 1885.
Announced in the open
Court on 25.07.2018 (POOJA TALWAR)
CMM (South), Saket Courts,
New Delhi
Certified that this Judgment contains 34 pages and each page is signed by me.
Digitally signed (POOJA TALWAR)
by POOJA
TALWAR CMM (South), Saket Courts,
POOJA Date: New Delhi
TALWAR 2018.07.27
16:10:19
+0530
FIR No. 575/2004 PS R.K. Puram (CB) Page- 34 of 34