Delhi District Court
State vs . Shiva Kumar Etc. on 11 January, 2013
FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 IN THE COURT OF VIDYA PRAKASH: CHIEF METROPOLITAN MAGISTRATE: DELHI U/s : 379/420/120B IPC & 4/20/20A/25 Telegraphic Act PS : Special Cell State Vs. Shiva Kumar etc. Unique ID No.: 02401R5261182004 J U D G M E N T:
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(a) S.No. of the case : 90/2
(b) Name of complainant : Sh. G.S. Sharma Manager (Vigilance), VSNL, Bangla Sahib Road, New Delhi.
(c) Date of commission of offence : 12.09.2012
(d) Name of the accused : 1). A. Shiva Kumar @ Ashok Kumar s/o Sh. Adaikkalam, r/o 1018, Selli Amman Koil, Thanjavour, Tamil Nadu.
2). J. Prince Vilbert s/o Sh. J. Joseph Gunasekaran, r/o H. No.17, 12th Street, Ganapathi Puram (Chennai), Tamil Nadu.
(declared PO during trial of case)
3). T. Kannapiran r/o M/s Bala Web Solutions, 57, Big Street, Triplicanet, State V/s A. Shiva Kumar etc. ("Convicted") Page 1 of 7 FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 Chennai.
(Declared PO during investigation of the case).
(e) Offence complained of : U/s 379/420/120B IPC & 4/20/20A/25 Telegraphic Act
(f) Plea of accused : Pleaded guilty by accused A. Shiva Kumar @ Ashok Kumar.
(g) Final arguments heard on : 11.01.2013 (h) Final Order : Convicted U/s 420 IPC & 4/20/20A/25 Telegraphic Act (i) Date of such order : 11.01.2013 A. BRIEF FACTS & REASONS FOR SUCH DECISION:
The facts of the case in brief are that on or before 12.09.2002 at Second Floor of premises no.D77, South Extension, New Delhi, he had entered into criminal conspiracy with coaccused persons namely T. Kannpiran and J. Prince Vilbert (both declared proclaimed offender) to run/operate an illegal telephone exchange at the aforesaid premises taken on rent by him and in pursuant to the said criminal conspiracy he had run the said illegal telephone exchange at the given address and thus cheated the Internet Service Provider causing a revenue loss to VSNL and thus he has committed offences punishable u/s 420/120B IPC as well as S. 4/20/20A/25 Indian Telegraph Act. After completion of investigation, chargesheet against State V/s A. Shiva Kumar etc. ("Convicted") Page 2 of 7 FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 accused Shiva Kumar and J. Prince Vilbert in the matter was filed in court through SHO concerned.
Detail of Court Proceedings:
2. After filing of charge sheet in the case, only accused A. Shiva Kumar appeared before the Court and he was supplied the documents in compliance of Section 207 Cr.P.C. After hearing arguments on charge, vide order dated 03.09.2009 charge u/s 420/120B IPC & 4/20/20A/25 Indian Telegraph Act was framed against accused A. Shiva Kumar @ Ashok Kumar to which he pleaded not guilty and claimed trial.
Evidence Held:
3. In order to bring home the guilt of accused, prosecution examined three witnesses, whereafter the PE in the matter was closed as the accused A. Shiva Kumar voluntarily pleaded guilty in the matter. Accordingly, statements of the accused was recorded u/s 281 Cr.P.C, wherein he admitted having committed the offences in the matter and prayed for a lenient view against him.
4. Before embarking upon appreciating the material available on record, it would be appropriate to have a brief scrutiny of the evidence recorded in the matter.
5. PW01 Sh. G.S. Sharma was the complainant in the matter who had State V/s A. Shiva Kumar etc. ("Convicted") Page 3 of 7 FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 reiterated the contents of the complaint in the matter and was accordingly cross examined in detail, however the detailed testimony of this witness need not to be discussed as the accused A. Shiva Kumar has pleaded guilty in the matter.
6. PW2 Sh. Sarvendra Singh deposed that on 12.09.2002, he was posted as Director (VigilanceTechnical) in Department of Telecom, Ministry of Communications & IT, Govt. of India. On that day, he went to the office of Special Cell, situated at Lodhi Colony alongwith Shri G.S Sharma, Manager (Vigilance), VSNL, Shri Ashish Agarwal, Manager (Engg.) from VSNL and Shri K.K Nayyar, AVO, MTNL. Shri GS Sharma had given one complaint regarding an illegal telephone exchange to Inspector HS Gill. After sometime, Inspector Giri Raj Singh prepared a raiding party alongwith his special staff and them. In the afternoon, they all went to premises No. P77, South Ex, PartII, New Delhi. On the second floor, one illegal telephone Exchange set up was found running in one room by two persons whose name were revealed as A. Shiv Kumar and J. Prince. The said illegal telephone exchange was receiving international calls directly causing revenue loss of lacs of rupees to the Govt. of India. The said set up was got photographed by the police. On the complaint of Shri GS Sharma, the FIR was got registered by the officials of Special Cell. They had conducted a joint inspection regarding the illegal setup. Joint Inspection Report, layout diagram of State V/s A. Shiva Kumar etc. ("Convicted") Page 4 of 7 FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 connectivity and call verification report were prepared by them and given to the police. They had found that the said telephone exchange causing revenue loss of more than Rs.27.00 lacs. The equipments of said illegal telephone exchange were seized by the police and the said two persons who were found running the setup were also arrested by the police. The inspection report Ex.PW1/B was comprising of three pages. The layout diagram Ex.PW2/A was prepared by him. The call verification report was Ex.PW1/C On 27.09.2010, after getting the detail records from M/s Bharti Telnet, he had calculated the total number of minutes missing and its corresponding loss which was amounting to Rs.31.46 lacs. The letter dated 27.09.2010 Ex.PW2/B in this regard written by him to Inspector HS Gill. He correctly identified the accused A. Shiva Kumar as well as case property before the Court.
During his cross examination, he stated that he was Engineering Graduate with Electronics & Communication. He had no separate degree for computer software as it was covered under Electronics. He knew NET Meeting API Software, being used for voice communication. He did not remember if the said software was found installed in the computer. There was no telephone instrument connected to the set up at that time. They had started from the Special Cell in afternoon, but he did not remember the time when they reached the spot. The inspection lasted for about two and two and half hours. ISDN PRI lines could be misused in such type of systems and same State V/s A. Shiva Kumar etc. ("Convicted") Page 5 of 7 FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 was in operation at that time. Local calls could be made from ISDN lines. They had not checked the system for text transmission. He denied the suggestions put to him by the defense.
7. PW3 Sh. K.K. Nayyar deposed on the similar lines as of PW2 Sh. Sarvendra Singh being accompanied him during the raid conducted on on 12.09.2002, at premises No. P77, South Ex, PartII, New Delhi. This witness also identified the accused A. Shiva Kumar before the Court.
8. This is all as far as prosecution evidence is concerned.
Court View & Final Decision:
9. The testimony of all the prosecution witnesses remained consistent and all the prosecution witnesses have supported the case of prosecution on all the material points. Accused A. Shiva Kumar could not elicit anything contrary to the case of prosecution during crossexamination of its witnesses. Accused A. Shiva Kumar has also voluntarily pleaded guilty in the matter. Accused was warned about penal consequences of his pleading guilt of the offences for which he has been charged in the present case. Accused had also been given sufficient time to think over again as well as to consult his defense counsel but despite that, accused insisted to plead guilty. After making such inquiry, Court has been satisfied that accused namely A. Shiva Kumar has voluntarily State V/s A. Shiva Kumar etc. ("Convicted") Page 6 of 7 FIR No. 54/02: PS Special Cell: U/s 379/420/120B IPC & 4/20/20A/25 Indian Telegraph Act DOD: 11.01.2013 pleaded guilty for the offences u/s 420/120B IPC & u/s 4/20/20A/25 Indian Telegraph Act. Consequently, in view of the plea of guilt made by accused A. Shiva Kumar, he is convicted for offences punishable u/s 420/120B IPC & u/s 4/20/20A/25 Indian Telegraph Act.
Announced in the open court (Vidya Prakash)
on 11.01.2013 Chief Metropolitan Magistrate:
Delhi
State V/s A. Shiva Kumar etc. ("Convicted") Page 7 of 7