Kerala High Court
Nafeesa vs State Of Kerala on 9 November, 2021
Author: K.Haripal
Bench: K.Haripal
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE K.HARIPAL
TUESDAY, THE 9TH DAY OF NOVEMBER 2021 / 18TH KARTHIKA, 1943
CRL.MC NO. 7687 OF 2016
CC 526/2016 OF JUDICIAL MAGISTRATE OF FIRST CLASS ,PARAPPANANGADI
PETITIONER/ACCUSED:
NAFEESA
W/O. AHMEDKUTTY HAJI,AGED 66 YEARS, PULPARAMBIL HOUSE,
SIDDHIQUABAD, PERUVALLOOR VILLAGE, TIRURANGADI,
MALAPPURAM DISTRICT.
BY ADVS.SMT.CHITHRA R.SHENOY
SRI.T.R.HARIKRISHNAN
RESPONDENT/S:
1 STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,HIGH COURT OF
KERALA, ERNAKULAM-682 031.
2 THE SUB INSPECTOR OF POLICE
THENJIPALAM POLICE STATION, MALAPPURAM -673 635.
3 ASSISTANT DIVISIONAL ENGINEER
VIGILANCE & TELECOM MONITORING DEPARTMENT, BSNL,3RD
FLOOR, KELLEY'S TELEPHONE EXCHANGE, KELLY'S
ROAD,CHENNAI-10.
4 RELIANCE INFOCOM LIMITED
REPRESENTED BY ITS CALICUT CLUSTER HEAD, APACO TOWER,
JAIN ROAD, CALICUT-673 001.
SHRI.P.VIJAYAKUMAR, ASG OF INDIA
SRI.T.R.HARIKUMAR FOR R4
SHRI.MATHEWS K. PHILIP ,SC FOR R3
SR.PP - SRI. HRITHWIK C.S.FOR R1 & R2
THIS CRIMINAL MISC. CASE HAVING COME UP FOR FINAL HEARING ON
03.11.2021, THE COURT ON 09.11.2021 PASSED THE FOLLOWING:
Crl.M.C.7687/2016 2
O R D E R
Petitioner is the accused in C.C.526 of 2016 pending before the Judicial First Class Magistrate-I, Parappanangadi, which arose out of the final report in crime 250/2005 of Thenjipalam police station. The petitioner faces allegations under Section 420 of the IPC besides Sections 4 and 20 of the Indian Telegraph Act and Sections 3 and 6 of Indian Wireless and Telegraphy Act. That crime was registered on the basis of a written complaint given by Vijay Krishnamoorthi, Assistant Divisional Engineer, Telecom Vigilance and Telecom Monitoring, Department of Telecommunications and I.T., Government of India. That complaint is produced and marked as Annexure-IV in the Crl.M.C. The petitioner contends that she is totally innocent and has been falsely implicated in the crime. She is running a Public Call Office (PCO) having three connections of Reliance Infocom Ltd. with telephone numbers 0494-3093845, 0494-3093348 and 0494-3093285 besides she has a BSNL land phone connection 0494-2492333. The BSNL connection is in the name of her husband. While so, alleging that she had conducted a parallel telephone exchange, the crime was registered and she has been summoned by the Magistrate. She admits that she used to get missed calls in the BSNL connection from abroad and a caller ID is connected to the said phone. It did Crl.M.C.7687/2016 3 not have ISD facility. But on getting such missed calls she used to call back in any of the three reliance telephone numbers. According to the petitioner, that will not attract any offence against the petitioner. According to her ,there is no allegation that she had used any unauthorised telegraph or unauthorised apparatus. Receiving a missed call on BSNL phone, basing on it calling back through the Reliance phones cannot attract penal provisions under the Indian Telegraph Act or Indian Wireless and Telegraphy Act. There is no element of criminality nor element of cheating is involved in it. Even though it is stated that the BSNL had suffered a loss of Rs.91,800/-, there is absolutely no basis for the same. Such a PCO was operated as a self employment venture, that she has been falsely implicated in the criminal charge. Therefore the entire proceedings are sought to be quashed.
2. At the time of admitting the Crl.M.C., further proceedings in C.C.526/2016 was stayed and the stay is continuing.
3. I heard the learned counsel for the petitioner, the learned Senior Public Prosecutor and also the learned Standing Counsel for the BSNL.
4. According to Smt. Chitra R. Shenoy, the learned counsel, this is a crime of the year 2004 for which the case was registered in 2005. The prosecution could not make out even elementary ingredients of Section 420 Crl.M.C.7687/2016 4 IPC. As a citizen of the country she is permitted to conduct a public call office and thus she had entered into an agreement, marked as Annexure-III, with the Reliance Company; she was operating the PCO lawfully, which cannot be called in question and which is not a criminal act. It is her right as a citizen to run a reasonable avocation. It is not known as to how making calls through the Reliance phone on getting missed calls in the BSNL phone would cause loss to the BSNL. According to the learned counsel, at that time, i.e. during the period 2004 and 2005, mobile phones were not very common and people used to depend on public call offices for making international calls and thus conference calls were made through the Reliance phone numbers and that there is absolutely no basis for launching criminal prosecution against her. So she forcefully prayed for quashing the proceedings.
5. On the other hand, Sri. Hrithwick, the learned Senior Public Prosecutor pointed out that the case was booked after finding that she was running a parallel telephone exchange. He also submitted that earlier Crl.M.C.3497/2005 filed by the petitioner was dismissed for non prosecution by the order of this Court on 07.09.2009. Such matters should be viewed very seriously and we do not know whether anti-national elements also were using such a facility.
Crl.M.C.7687/2016 5
6. Mr. Mathews K. Philip, the learned Standing Counsel for the BSNL submitted that the crime was registered on the basis of the intimation given by the Telecom Vigilance Monitoring Department and that international calls are allowed to be made on revenue sharing basis and when such international conference calls are done, it cause revenue loss to the Telecom department and therefore such a case is maintainable against the petitioner.
7. After hearing counsel on both sides, for numerous reasons, I am not convinced that the case should be quashed at the threshold. Firstly, as pointed out by the learned Public Prosecutor, it is a case in which the allegation is that the petitioner had been running a parallel telephone exchange that too for the purpose of making international calls. At the first blush it may seem very simple and innocuous that she used to get missed calls in the BSNL land line which is having a caller ID and looking at the missed call numbers, people were allowed to use the Reliance phone for making ISD calls. The Annexure- IV report indicates that during an inspection of Reliance number, i.e. 0494- 3093348 which admittedly belongs to the petitioner, it was noticed that a caller line identity with an international call had come and that it was observed that international call conference was being done with three numbers and BSNL number was used for identifying calls from abroad. Thus, illegal conference Crl.M.C.7687/2016 6 was done with ISD number at one end and STD/local numbers at the other end thereby setting a manual trunk telephone international exchange. So he reported that it amounts to violation of Sections 4 and 20 of the Indian Telegraph Act and Sections 3 and 6 of the Indian Wireless and Telegraphy Act.
8. Even though the learned counsel has submitted that no apparatus was seized from the premises of the petitioner, from the available documents produced by the petitioner such matters cannot be inferred. In fact, the petitioner has come with truncated documents. Even the charge sheet is only a part of a document. The agreement produced by the petitioner is also truncated. Basing on such truncated materials we cannot make any inference. Moreover, the petitioner has also made reference to the statements of CWs 3, 4, 5, etc. which also is absent among the documents produced by the petitioner. On the strength of such truncated materials we are not able to draw any inference in the matter.
9. The learned Standing Counsel for the BSNL has submitted that when such international conference calls are made, there is a revenue sharing system and if that was not done with the junction of the Telecom department, that may cause loss to the revenue. Moreover, it is not known as to how the petitioner Crl.M.C.7687/2016 7 could operate a telephone exchange at her premises. Therefore prima facie it attracts offence under the provisions of law alleged against her.
10. Moreover, these are matters involving technical aspects, which can be decided only after taking evidence. It is the realm of evidence to be decided after examining witnesses and perusing documents. This Court cannot usurp the powers of the trial court. A parallel enquiry or atrial cannot be conducted under Section 482 of the Cr.P.C. Therefore, this Court cannot conduct an enquiry into the matter. The petitioner should face trial.
On these considerations, the Crl.M.C. lacks merit and an order under Section 482 of the Cr.P.C. is not warranted. The Crl.M.C. is dismissed.
Sd/-
K.HARIPAL
JUDGE
okb/6.11
//True copy// P.S. to Judge
Crl.M.C.7687/2016 8
APPENDIX OF CRL.MC 7687/2016
PETITIONER ANNEXURE
ANNEXURE I CERTIFIED COPY OF THE FIR IN CRIME
NO.250/2005 OF THENJIPALAM POLICE STATION.
ANNEXURE II CERTIFIED COPY OF THE CHARGE IN CRIME
NO.250/2005 OF THENJIPALAM POLICE STATION.
ANNEXURE III COPY OF AGREEMENT EXECUTED BETWEEN PETITIONER
AND RELIANCE INFOCOM LTD. ON 24.8.2004.
ANNEXURE IV A CERTIFIED COPY OF THE COMPLAINT DATED
23.8.2005 PREFERRED BY ASST. DIVISIONAL
ENGINEER TELECOM.