Delhi District Court
Cc No. 31/2009 Cbi vs . B. S. Meena & Ors. Page 1 Of 91 on 19 November, 2015
IN THE COURT OF SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 31/2009
ID No. 02401R0183892001
Central Bureau of Investigation (CBI)
Versus
1. B.S. Meena
S/o. Shri K.S. Meena
R/o. 14/17, Pant Nagar,
Jangpura Extn., New Delhi.
2. Jatinder Kumar Arora
S/o. Shri Notan Das Arora,
R/o. H. No. 2349, Sector -16,
Faridabad, Haryana.
3. Ram Nath Singh
S/o. Shri Dharam Singh
R/o. H. No. 77-78, Gali No. 4,
Block-A, Sanjay Colony, NIT,
Faridabad, Haryana
4. Khazan Singh
S/o. Shri Dal Chand
R/o. Village Ajnouda,
P.O. Escort Company, Sector-15,
Faridabad, Haryana
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 1 of 91
5. Balbir Singh
S/o. Shri Ailwar Singh
R/o. Village Basy, PO Narinder Nagar,
PS Narinder Nagar,
Distt. Tehri Garhwal,
U.P.
6. Satender Kumar Meena
S/o. Shri K.S. Meena
R/o. 1417, Pant Nagar, Jangpura Extn.
New Delhi
7. Preetpal singh
R/o. F-90, Rajouri Garden,
New Delhi.
Case arising out of: FIR No. RC-11(A)/94/DLI
Date of FIR : 24.01.1994
Date of Institution : 30.01.1997
Date of conclusion of
Final Arguments : 26.10.2015
Date of Judgment : 16.11.2015
JUDGMENT
FACTS 1.0.This case was registered on the complaint of Shri A.K. Sharma (PW-), A.E., Vigilance, MTNL, New Delhi. He has alleged that Shri B.S. Meena (A-1), Phone Inspector, Smt. Ramkali Meena, Telephone Operator and Shri Satinder (A-6), brother of A-1, were operating a racket of providing CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 2 of 91 international telephone calls on cheap rates to specified Customers by fraudulent means. These persons had taken two Telephone Lines on fake name, one without STD & other with STD/ISD facility at Faridabad from where A-6 was operating the racket. A-1 was having a telephone No. 4693959 at his residence at 14/7, Pant Nagar, New Delhi. These persons have employed BalbirSingh (A-5), who was operating this racket from basement of House No. 12/19, Sarvapriya Vihar, New Delhi. A-1 had taken, line of telephone No. 653066 from the landlord, to the basement to connect an ISD/STD Line for the benefit of private customers from whom he used to charge money illegally.
1.1.After registration of this case, on 25.01.1994 simultaneous searches were conducted at three places, in presence of independent witnesses. The House of A-1, where telephone No. 4693959 was installed was searched. The premises at Village Fatehpur Chandela, Faridabad was also searched. There two telephones, numbering 219243 with STD/ISD facility on the name of Dr. Luxmi Kumar and 219285 without STD on the name of Jagdish were found running in a very small room taken on rent from Landlord Shri Kishori Lal. A-6 was found operating these telephone. Third place was premises No. 12/19, Sarvapriya Vihar where telephone No. 653066 on the name of Ms. Lita Sahney was found working. It was found that she had given one extension line of the said Telephone number in the basement of the said premises, where A-5 an employee of A-1 was connecting STD/ISD telephones for the benefit of private customers. A-5 was found present at the spot at the time of search.
1.2Investigation revealed that telephone No. 219243, 219285, 216701 & 212459 had been got sanctioned on fake names by Jitender Kumar (A-2), CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 3 of 91 JTO. The application forms of these numbers were found to be filled and signed by A-2. The insertion of change in address in OBs were also found in his handwriting.
1.3.Investigation further revealed that during search of premises No. 5- K/NIT of Shri N. D. Khanna, two telephone lines were found. The landlord had rented a room of the said house to a person named Shri Ramesh Kapoor and was staying with a lady. Description of Ramesh Kapoor tallied with A-1 who was also identified by landlord. Out of the two telephone lines, one telephone No. 216701 was found alive & telephone No. 212459 was found dead. During investigation, it came to light that A-1 had taken a room on rent from Shri Kishori Lal landlord and had given his name as 'Malik'/ 'Raman Sahab'. Subsequently, A-6 (Satender Singh Meena) was staying there and was operating the racket. A-1 was the kingpin who was behind this racket. During search on 28.01.1994, telephone calls of Shri Pritpal Singh (A-7), Ms. Rashmi & Mr. Naveen Wadhwa were received for obtaining ISD facility. These calls were recorded in the presence of witnesses. A-1 was identified as 'Saleem' by Pritpal Singh (A-7) and Ms. Rashmi on 27.01.1994 as A-1 was taken before them in custody in the presence of independent witnesses.
1.4.Investigation revealed that Jumper Letters were issued for the telephones by A-2. The request of the Subscribers regarding the change of address are not available and A-2 had changed the address in the OB in his handwriting. There was no verification of address by A-2 at any stage. ISD/STD facility was provided without any request from Subscriber by A-2. In pursuance of this conspiracy, A-2, Ram Nath Singh (A-3) Lineman & Khazan Singh (A-4), RM installed these telephones illegally, CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 4 of 91 as per direction of A-2. During investigation, test check of telephones during the raid on 25.01.1994 from 9:30 A.M. to 1.30 P.M. was conducted and various telephones calls/conversations during this period were tape recorded. It was found that total loss of Rs.15,15,814/- was caused to the MTNL.
1.5.Investigation revealed that A-1 was contacting private customers on the Non-STD telephone No. 4693959 and was obtaining ISD /STD numbers from such customers who desired to talk on ISD/STD lines from their residence. This message used to be conveyed either to A-6 at Village Fathepur Chandela or to A-5 at 12/19, Sarvapriya Vihar. Both these persons in pursuance to the directions given by A-1 used to connect ISD/STD lines to such Customers with the help of conference facility and the Customers were able to talk to the persons outside Delhi and outside India. A-1 & A-6 used to collect the amount for this illegal calls. Billing of such telephone calls were recorded but the Subscribers of said telephones did not exist. The bills of this telephone numbers totaled Rs.15,15,814/-. A-7 who is Proprietor of M/s. Exceptionals Export, having telephone Nos. 5705463, 5705464 & 5705465 In conspiracy with A-1 had made large number of illegal ISD calls to Saudi Arabia, Germany, USA, England so over since November, 1993to 25.01.1994.
1.6.Charge Sheet was filed against all these accused persons for the offences punishable U/s. 120-B IPC r/w. 420 IPC, 468, 471 IPC 13(2) r/w. 13(1) (d) of PC Act, 1988 and Section 25 of IT Act. Sanction Orders for prosecution of A-1 to A-4 were taken from the Competent Authority.
Charge CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 5 of 91 2.0. Charge U/s. 120 B r/w. 420, 468, 471, 13(2) r/w. 13(1) (d) of PC Act was given to all accused to which they did not plead guilty and claimed trial.
A-1 was separately charged for the offence U/s. 420 IPC and U/s. 13(2) r/w. 13(1) (d) of PC Act to which he pleaded not guilty and claimed trial.
A separate charge was given to A-2 for the commission of the offence U/s. 468, 471 IPC & under Section 13(2) r/w. 13(1) (d) of PC Act to which he pleaded not guilty and claimed trial.
A separate Charge was given to A-3 U/s. 13(2) r/w 13(1) (d) of PC Act to which he pleaded not guilty and claimed trial.
A separate charge was given to A-4 for offence punishable U/s. 13(2) r/w. Section 13(1) (d) of PC Act to which he pleaded not guilty and claimed trial.
A separate Charge was given to A-5 for the offence punishable U/s. 420 IPC & U/s. 25 of Indian Telegraph Act.
A separate Charge was given to A-6 of the commission of offence U/s. 420 IPC & U/s. 25 of Indian Telegraph Act.
A separate Charge given was to A-7 for the offence punishable U/s. 420 IPC to which he pleaded not guilty and claimed trial.
PROSECUTION EVIDENCE 3.0.To establish its case, Prosecution has examined 29 witnesses.
3.1. The various witnesses examined by Prosecution from MTNL/ BSNL are :-
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 6 of 91i)PW-1 Shri A.K. Sharma, who is complainant.
ii)PW-6 Shri Durgapal Singh, Sr. TOA in the Office of G.M. (Telephone), Faridabad.
iii)PW-8 Shri Kamal Bhagat, DE, Telephone Exchange, Faridabad.
iv)PW-9 Shri Raghuvinder Gupta was working as Assistant Divisional Engineer in Telephone Exchange Sector -15, Faridabad.
v)PW-10 Shri Ram Kumar Sharma, Labourer in Commercial Office, GMT, Faridabad.
vi)PW-11 Shri Avdesh Kumar, SDO Telephone Exchange, Faridabad.
vii)PW-14 Shri Jai Prakash Bhardwaj, TOA in the Office of SDO, Nehru Ground, Exchange, Faridabad.
viii) PW-16 Shri D.C. Mishra, Phone Inspector, Nehru Ground, Exchange Faridabad.
ix)PW-18 Shri S.L. Mehta, Sr. Accounts Officer in the Office of G.M. Telecom District, Faridabad, Haryana.
x)PW-21 Shri Anupam Yadav, Telephone Revenue Inspector in the Office of G.M. Faridabad.
xi)PW-22 Shri Edal Singh, DE (Administration) in the Office of General Manager Telecom, Faridabad.
xii) PW-23 Shri H.S. Sharma Dy. General Manager (Administration), Northern Telecom Region, Kidwai Bhawan, New Delhi.
xiii)PW-24 Shri R.C. Hooda, DGM, Department of Telecom, Faridabad gave sanction for prosecution of A-2.CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 7 of 91
xiv) PW-25 Shri B.M. Sharma, SDO (Phones) Nehru Ground, Faridabad and he gave sanction for prosecution of A-3.
3.2. Various independent witnesses examined by Prosecution, who were joined in the raids on 25.01.1994 conducted on different premises are : -
i) PW-2 Shri Ashutosh Mishra who was working as Assistant in Directorate of Estate, Ministry of Urban Development.
ii) PW-3 Shri Naresh Kumar, UDC, Ministry of Commerce. Iii) PW-4 Shri M.S. Negi, UDC, Joint DGFT (Direct General of Foreign Trade)
iv) PW-5 Shri Bansi Lal, Licensing Assistant, Office of Zonal Joint Director General of Foreign Trade.
v) PW-7 Shri Ratti Ram, Sr. Store Keeper, NBCC Lodhi Road, New Delhi.
vi)PW-13 Shri S.S. Garg, Deputy Manager State Bank of India.
3.3. Various public witnesses examined by Prosecution are: -
i)PW-12 Shri Murali Kumar residing at House No. 5E/14, NIT Faridbad.
ii) PW-17 Shri Gurbaksh Singh.
iii) PW-19 Shri Jagdish Kumar Sethi
iv) PW-20 Shri S.K. Panchal r/o. 5B/81, NIT, Faridabad, Haryana.
v)PW-26 Shri Kishori Lal R/o. Village Fatehpur, Chandela, Faridabad, Haryana.CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 8 of 91
3.4. The Investigating Officer and other CBI officials examined are:-
i) PW-15 Shri S.K. Peshin, Dy. S.P. CBI conducted search at House No. 12/19, Sarv Priya Vihar, New Delhi
ii) PW-28 Shri K.S. Joshi, Dy. S.P., CBI
iii) PW-29 Shri R.S. Jaggi, Dy. S.P., CBI. He conducted search at Village Fatehpur, Chandela, Faridabad.
iv)PW-27 Shri S.K. Saxena is Dy. Government Examiner of Questioned Documents.
STATEMENT OF ACCUSED PERSONS & DEFENCE EVIDENCE 4.0. On the basis of incriminating evidence against the accused persons. Their statements were recorded U/s. 313 Cr.P.C. where they denied entire evidence against them and took the defence of false implication in case and opted to lead defence evidence.
4.1. In defence evidence, A-2 examined 9 witnesses.
i) DW-1 Shri Rajesh Narain, Assistant Director, RTI, BSNL.
ii) DW-2 Shri Ashok Kumar Gupta, AGM (Administration) MTNL, Khursheed Lal Bhawan, Janpat, New Delhi.
iii) DW-3 Shri Hardayal Varshney, Vigilance Officer, MTNL in the Office of G.M. (Vigilance), Khursheed Lal Bhawan, New Delhi.
iv) DW-4 Shri Harish Rautela, Accounts Officer (Cash) CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 9 of 91 Wireless Services, MTNL, CGO Complex, New Delhi.
v) DW-5 Shri R.C. Ahuja, Under Secretary, Department of Telecommunication, Sanchar Bhawan, New Delhi.
vi) DW-6 is A-2 himself (After taking permission U/s. 315 Cr.P.C.)
vii) DW-7 Smt. Suman Jain, A.O. Pension Cell, MTNL Eastern Court, New Delhi.
Viii) DW-8 Shri Bihari Lal, Former Divisional Engineer, KBN, MTNL, New Delhi.
ix)DW-9 Shri Shiv Singh, Assistant General Manager (Central), MTNL CGO Complex, New Delhi.
Arguments 5.0.Ld. PP Sh. Anil Tanwar, for CBI has submitted that A-1 B.S. Meena was kingpin of all this racket and he along with his brother Satender Meena, A-6 had taken a room on rent at village Fatehpur Chandela, Faridabad, Haryana.
5.1.Ld. PP for CBI has submitted that there is enough evidence against accused persons showing that A-1 was running racket of providing ISD/STD facilities to the customers at cheaper rates from the telephones which were illegally and fraudulently installed in the name of non-existing persons from Fatehpur Chandela, Fridabad and Sarvpriya Vihar. It has been stated that in pursuance to the conspiracy, A-1 and other accused persons got installed 4 telephone numbers on the name of non-existing persons under special category. It has been stated that on the basis of complaint Ex. PW 1/A various premises were searched after registration of FIR. The Main IO PW-28 K. S. Joshi had conducted search at the CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 10 of 91 residence of A-1 at 14/7, Pant Nagar, Jangpura Extension alongwith independent witnesses PW-4 and PW-5. From there various torn pieces of paper, some papers containing name of parties and phone numbers and currency notes of Rs. 1,06,820/- etc. were recovered. It has been stated that calls were received on the telephone number installed at the house of A-1 from one Ms. Rashmi from Narina Industrial Area seeking her to be connected to ISD/STD calls, numbers were conveyed to telephone installed at Fatehpur Chandela, Faridabad, being handled by A-6. It has been stated that PW-29 R. S. Jaggi had searched the premises at Fatehpur Chandela, Faridabad house of one Kishori Lal and A-6 was found operating the telephones from there. It has been stated that statement of PW-28 stands corroborated from PW-29 as on the request made by Ms. Rashmi and A-7 to A-1, the international calls were connected by A-6 from the telephone installed at Fatehpur Chandela.
5.2.Ld. PP has further submitted that the premises 12/19 Sarvapriya Vihar was searched by PW-15 S.K. Peshin, Dy SP and A-5 was found operating from there. Number of customers had come there to make international calls and statement of PW-15 is consistent on this aspect. It has been stated that after his apprehension, A-1 has made various disclosure statements dated 28.1.1994 which led to discovery of new facts and same can be considered under Section 27 of Indian Evidence Act. It has been stated that PW-28 has also conducted search at the office of Rashmi at Naraina Industrial Area and a telephone diary and the register having vital information regarding this conspiracy were seized. It has been stated that at the time of this inspection, A-1, A-4 and SI Raj Singh were found in the office of Ms. Rashmi Batra. It has been further submitted that subscribers on the names of wihich 4 telephones CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 11 of 91 connections were installed were found to be non-existing at the given addresses. It has been stated that the statements of CBI officers PW-15, PW-28 and PW-29 are consistent and corroborative to each other as well as to documents seized from the various places and the same cannot be discarded. In support of his submissions, Ld. PP has relied upon Hazari Lal Vs. State (Delhi Administration) AIR 1980 SCC 873.
5.3.Regarding sanction for prosecution of A-1, Ld. PP has submitted that this accused has committed offence in his individual capacity. The offence committed by him was not having any connection with the discharge of his duties as a public servant, hence, the sanction was not at all required. It has been stated that even otherwise as per Section 19(3) of P. C. Act to assail the sanction accused has to establish if any injustice has been caused to him by grant of this sanction.
5.4. Ld. PP has further submitted that A-2 was posted as JTO at Faridabad during the relevant time and there are several documents, i.e. applications for providing new telephone connections, jumper letters and other documents of telephone department, which as per GEQD opinion bears the handwriting of A-2. It has been stated that statement of prosecution witness PW-11, PW-14 and PW-16 goes to establish that A-2 was working as JTO in Faridabad during the relevant period. It has been stated that the files Ex. PW 22/9, PW 22/5, PW 22/1 and PW 22/12 regarding 4 telephone numbers, contain various documents containing questioned handwriting of A-2, same was sent to GEQD opinion and opinion is implicating A-2.
5.5. Ld. PP has further submitted that A-7 was the beneficiary to CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 12 of 91 avail facility of ISD/STD call at cheaper rates through A-1. It has been stated that statements of PW-28, PW-29 who have searched the premises of A-1 and Fatehpur Chandela, Faridabad establish beyond doubt that request of ISD call made by A-7 to A-1 was connected by A-6 who was operating telephone numbers at Fatehpur Chandela, Faridabad under this conspiracy. While concluding his arguments, Ld. PP has submitted that the prosecution has been able to prove ingredients of the offence against accused persons.
5.6. Sh. M. P. Singh, Ld. counsel for A-1 and A-6 has submitted that there is no direct or indirect evidence brought on record by prosecution from which it can be inferred that accused had tempered with MTNL line which may invite their prosecution under Section 25 of I.T. Act. It has been stated that A-1 has been charged under Section 13(1)(d) of P. C. Act and in order to attract this section, it is necessary to prove that there has been an abuse of position by the public servant. In this case, A-1 was not even posted in Delhi and he had already been transferred to Calcutta vide order dated 19.10.1993 and he had been removed from strength of MTNL and KBN division as is evident from Ex. PW 8/A and PW 8/B. It has been submitted that A-1 was in no way in a position to abuse his position as a public servant. It has been stated that even the ingredients of offence of cheating as defined under Section 415 IPC are not there against the accused. It has been argued that prosecution has built its case on the disclosure statement of accused, Law is settled that disclosure statement being confessional in nature cannot be read in evidence, except where statement leads to discovery of some fact which can be read in evidence. It has been further submitted that there is allegations against A-1 that he has been offering STD/ISD calls at cheaper rate but there is no evidence CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 13 of 91 on record to prove that he was providing STD/ISD facility to any person or he was running any telephone booth. It has been submitted that if a person has telephone booth and he does not charge from the person approaching him for telephone call,that does not make him criminally liable. It has been further contended that as per prosecution story phone no. 219243 and 219285 were allegedly installed at the house of Kishori Lal PW-26, on 25.1.1994, raid was conducted at the house of Kishori Lal at Fatehpur Chandela, Faridabad by PW 29 R. S. Jaggi, Dy.SP accompanied by PW-7 Ratti Ram, but PW 26 and PW-7 have not supported the prosecution in any manner. It has been further submitted that as per prosecution case telephone no. 216701 and 212459 were allegedly installed at 5K/91A, NIT Faridabad but there is not an iota of evidence to prove that A-1 was in any way connected with these telephone numbers. It was further argued that as per prosecution case phone number 653066 was installed at House No. 14/7 Sarvpriya Vihar and the premises was owned by Ms. Lita Gidwani and phone was on the name of her mother. As per prosecution case, search of this premises was conducted by PW-15 Sh. S. K. Peshin, Dy SP, at that time A-1 was not present there and no material was recovered from there which may have connected A-1 with the said premises in any manner.
5.7. It has been further submitted that public witnesses associated in the search have not supported the prosecution in any manner and sanction granted for prosecution of A-1 is invalid as A-1 was not posted in Delhi and his disciplinary and sanctioning authority was GM Calcutta. It has been further argued that as far as report of handwriting expert PW-27 S. K. Saxena is concerned, the alleged specimen writing S-76 to S-106 attributed to A-6 has not been proved by any one. PW-27 has not given CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 14 of 91 any opinion on the basis of specimen writing S-35 to S-43 attributed to A-6 sent earlier to GEQD. Report Ex. PW 27/4 is based on the specimen writing S-76 to S-106 attributed to A-6 but the same has not been proved by any one. In support of his submissions, Ld. counsel has relied upon Magan Bihari Lal Vs. State of Punjab [1977 Crl. L.J. 711].
5.8. Sh. Harish Khanna, Ld. counsel for A-2 has submitted that A-2 was permanent employee of MTNL, Delhi but sanction was given by PW-24, Dy.G.M. (Telecome), BSNL, Gurgaon and the same is defective and not as per the requirements of Section 19 P.C. Act. It was stated that from the entries in the service book of A-2, i.e. Ex. DW 7/1 and Ex. DW 7/2, it stands established that A-2 was recruited as mechanic in Delhi Telephone in the year 1972 and was promoted as JTO on 24.5.1978. It was argued that as per his service book, he was transferred from Delhi to Ballabhgarh, as at that time, Faridabad used to come under jurisdiction of Delhi Telephone. MTNL was constituted w.e.f. 1.4.1986 vide circular of DOT and staff being transferred was deemed to have been transferred on deputation to concerned circle without deputation allowance. It has been stated that as per letter Ex. DW 7/6 from Faridabad, A-2 remained on the strength of MTNL on the Northern Telecom Division and even in the gradation list of Delhi Telecom Ex. DW 2/3, A-2 is shown at serial no. 480 which further establish that he remained employee of MTNL(NTR). It has been further contended that as per letter Ex. DW 7/10, A-2 was put under suspension by DGM, Faridabad. It has been stated that the documents proved on record, i.e., Ex. PW 24/DX and Ex. PW 24/DX-1 proves that after sanction order was given against A-2, Haryana Circle had sent a letter to Faridabad mentioning that he belongs to MTNL and is on deputation to this circle. Ld. counsel submitted that as per Ex. PW CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 15 of 91 24/DX-3, a letter was sent from Faridabad to Haryana Circle about repatriation of A-2 showing him recruitee of MTNL, New Delhi and vide note sheet Ex. PW 24/DX-4, G.M. Faridabad had given approval for repatriation of A-2. It is stated that, accordingly, A-2 was repatriated from Faridabad to MTNL vide letter Ex. PW 24/DX-8.
5.9. Ld. counsel for A-2 has further stated that it also stands established from the evidence brought on record by A-2 that as per Ex. DW 2/4, MTNL has written letter to Faridabad that A-2 will not be taken on duty till his suspension is revoked and disciplinary case is settled at Faridabad and, accordingly, his suspension was revoked vide document Ex. PW 24DX-10. It has been stated that thereafter after revoking his suspension vide letter Ex. PW 24/DX-11, A-2 was transferred to Rewari from Faridabad and in this letter, he was shown as JTO, MTNL. Ld. counsel has urged that as per CAT judgment Ex. DW 6/1, A-2 is held to be MTNL employee and this order is not challenged by Haryana Circle, hence, the same has become final. It has been stated that accordingly A-2 joined MTNL on 3.12.2001 and he superannuated from there on 16.1.2006.
5.10.Ld. counsel for A-2 has further contended that to prove the allegations of forgery prosecution has relied upon the report given by PW-27 GEQD but before relying upon this report, the prosecution is supposed to prove admitted handwriting/signature and questioned handwriting/signature of A-2, which it has failed miserably. It has been stated that admitted documents allegedly containing handwriting of A-2, i.e. A-1 to A-22 were seized by IO Inspector Ved Prakash vide seizure memo Ex. PW 28/7 (D-81) but same remained unproved. It has been CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 16 of 91 stated that IO Ved Prakash died and could not depose in this case and other witnesses PW-11 Awadesh Kumar has not supported the prosecution in any manner. It is further argued that other documents allegedly containing admitting handwriting, i.e. A-23 to A-32 were seized by Inspector Ved Prakash vide seizure memo Ex. PW 6/A (D-83) but this also remained unproved as I.O. has died and other witness D. P. Singh has not identified the handwriting of A-2. It has been further stated that same is the fate of A-33 to A-38 which was allegedly seized vide memo Ex. PW 28/9 (D-84). Regarding specimen signature of S-1 to S-10, Ld. counsel has submitted that out of the various attesting witnesses, prosecution has been able to examine PW-4 M. S. Negi and PW-5 Bansi Lal but they have not supported the prosecution in any manner. Regarding S-16 to S-22, only witness is deceased IO Ved Prakash and regarding S-1 to S-15 (D-69) out of the attesting witness, IO has died and PW-11 Awadesh Kumar has not deposed, if specimen signatures were taken in his presence. Ld. counsel has further argued that moreover, specimen handwriting of A-2 was taken by police and the same is not permissible as per law. Ld. counsel has argued that law is settled on this point that specimen handwriting should have been taken in the presence of the court and if taken by IO during investigation, the same carries no value in the eyes of law.
5.11.It has been further submitted that one of the allegations against A-2 is that A-2 has sanctioned 4 telephone connections on the names of fake persons by himself filling application forms and inserting change of address in the OBs but there is no evidence on record, of any witness examined by prosecution that same were forged. It is stated that PW-22 has admitted to have approved the installation of these 4 connections by CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 17 of 91 writing comments on note sheet D-90 to D-93 which are Ex. PW 22/3, Ex. PW 22/7, Ex. PW 22/14 and Ex. PW 22/11.
5.12. In support of his submissions, Ld. counsel for A-2 has relied upon the following judgments:-
(1) S.K. Bhatia Vs. CBI [110 (2004) DLT 393], (2) State of Uttaraakhand Vs. Yogendra Nath Arora [2013 STPL (Web) 208 SC], (3) R. R. Chari Vs. State of UP [1 SCR[1963] 121], (4) A. K. Srivastava Vs. State of UP & ors [1980(1) SLR 369 All.], (5) Sailendranath Bose Vs. The State of Bihar [AIR 1968 SC 1292], (6) Khemi Ram Vs. The State of Punjab [(1976) 3 SCC 699], (7) Vijay Jain Vs. State & anr. [2015(2) JCC 1477], (8) Magan Bihar Lal Vs. The State of Punjab [1977 CAR 183(SC)], (9) Ajit Singh Vs. State of Punjab [1996(2) CCC 474(HC)], (10) Shashi Kumar Banerjee & ors Vs. Subodh Kumar Banerjee [AIR 1964 SC 529]. (11) Rakesh Kumar Vs. State [2004 (1) JCC 110 (Delhi)], (12) Murari Lal Vs. State of MP [AIR 1980 SC 531], (13) Vembu Amal Vs. Esakkia Pillai [AIR (36) 1949 Madras 419] & (14) Sapan Haldar & anr. Vs. State [191(2012) DLT 225(FB)].
5.13.Sh. H. R. Dhamija, Ld. counsel for accused no. 3, 4 & 7 has CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 18 of 91 submitted that there is no direct or indirect evidence against these accused persons to prove that they either formed any criminal conspiracy or become member of criminal conspiracy with any of the accused persons at any point of time. It has been stated that there is absolutely no direct or indirect circumstantial evidence against these accused persons and out of the 29 witnesses examined by the prosecution, no one has sated even a single word against any of them. It is stated that even there is nothing against any of these accused persons in GEQD report. It has been further stated that PW-25 B.M. Sharma was not competent to remove A-3 and A-4 from service. It was further contended that the various circulars, on the basis of which PW 25 has given the sanction to prosecute A-3 and A-4, were not produced. In support of his contentions, Ld. counsel has relied upon Balkar Singh Vs. State of Haryana [2015(1) CCC (SC) 168].
5.14. Sh. Rashid Hashmi, Ld. counsel for A-5 has submitted that as per prosecution case, A-5 had been employed by A-1, on behalf of A-1, A-5 was operating the racket in the basement of house no. 12/19, Sarvpriya Vihar, New Delhi . It has been stated that case of prosecution is that one extension of telephone no. 653066 on the name of Ms. Lita Gidwani was found working and there A-5 was found connecting STD/ISD telephone for the benefit of private customers. It is urged that prosecution has failed to establish that this telephone was installed at premises no. 12/19, Sarvpriya Vihar and Ms. Lita Gidwani has not been examined, who could have thrown light on this case. It has been submitted that in the raid at house no. 12/19, Sarvpriya Vihar, PW-2 was joined but he has not supported the prosecution case in any manner and has even not identified A-5 in the court. It was further submitted that case of prosecution is that CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 19 of 91 PW-15 S. K. Peshin, who conducted raid at Sarvpriya Vihar had given a USA number to Sh. R. S. Jaggi who was conducting simultaneous raid at village Fatehpur Chandela and the same was connected through telephone no. 653066 installed at Sarvpriya Vihar. It has been argued that except statement of PW 15, there is no other technical or documentary evidence to this effect that this call was connected through phone no. 653066 installed at premises 12/19, Sarv Priya Vihar. It has been submtted that as per prosecution case premises no. 12/19, Sarvpriya Vihar was let out to one Salim Khan and A-5 was employee of Salim Khan. It is the prosecution case that Salim Khan was none other then A-1 but except disclosure statement of A-1, there is absolutely no evidence on record to establish this fact. It has been stated that in order to prove impersonation by A-1, he could have been subjected to judicial TIP by Ms. Leeta Gidwani but same has not been done. It has been further submitted that Pw-8 and Pw-9 are employees of MTNL and were posted in the relevant exchange from where allegedly overseas calls were connected by conference facility but both these witnesses have stated that on 25.1.1994 there was some technical snag in the exchange and the standby recording unit was also having some problem due to which the data for about one hour got missing. It has been further argued that as per the prosecution case number of customers were present at Sarvpriya Vihar but none of them was joined as witness or has been examined in the court. It has been further submitted that no bill/document/technical report has been placed on record to prove the fact that call was connected from Sarvpriya Vihar to USA through telephone installed there and from the telephone installed at village Fatehpur Chandela Faridabad.
Appreciation of evidence.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 20 of 916.0.The genesis of this case is complaint Ex. PW 1/A made by PW-1 Sh. A. K. Sharma, SDE, Office of GM (West-III), MTNL. He deposed that on 24.1.1994, he was working as Assistant Vigilance officer in the office of Director (Vigilance), MTNL. On that day, he made this complaint under his signatures. He also filed print out containing 6 pages along with his complaint. In continuation of his complaint, he has written a letter Ex. PW 1/B to SP CBI. He had also handed over one cassette in which some conversation was recorded by him and JTO Rajinder.
6.1.The verbatim contents of the complaint Ex. PW 1/A are as follows:-
"To The S.P., CBI, ACB, CGO Comploex, Lodhi Road, New Delhi 110003 Sub:- Racket of providing international telephone calls at cheap rates to selected customers.
It has been reliably learnt that a gang consisting of Telephone Operator, MTNL, Phone Inspector, DOT, Smt. Ram Kali Meena, Satinder (brother of Shri B. S. meena), all residing at 14/7, Pant Nagar, New Delhi and their accomplices are operating a racket of providing international telephone calls at cheap rates to selected and screened customers. Other family members of Shri B. S. Meena also help the gang.
They have presently hired two telephone lines in fake names, one without STD and the other with STD facilities at a clandestine location in Faridabad. From this location Mr. Satinder and two other employees of the gang connect the international calls to the customers by dialing the local number of the customer on non STD line and desired international number on the STD line and putting through the connection by using conference facility. A conference type telephone instrument is used for the purpose.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 21 of 91The customers whose number ranges in hundred like exporters, NRI families, foreign nationals etc., are very rich, highly connected persons who need to talk abroad frequently for long durations. They are either directly contacted on daily basis by the operator at Faridabad for providing the services of international calls or such customers who do not require calls on daily basis convey the requirement at phone no.
4693759. The details of the services required are then passed on to the operators at Faridabad. The gang have also employed another person named Shri Balbir under some contract/agency arrangement who operates from the basement, 12/19, Sarva Priya Vihar, New Delhi. This accommodation has been hired along with the facilities of telephone no.
653066 for day time. This phone line has been tampered and connection has been extended to the basement in connivance with the phone/house owner The screened foreign nationals particularly Afghanis are allowed at this place and international calls particularly to Pakistan, Afghanistan and Gulf countries are connected on this Phone No. 653066 by the operators of the gang sitting at Faridabad. Calls worth approximately Rs. 10 Lacs per month are connected on these clandestine telephone lines and the gang collect about 25% of the Government rates from their customers. Huge illegal money thus collected has been invested in immovable property at Delhi & their home village and also deposited in different names in various banks at Delhi & home village. The telephone line and location are frequently shifted/changed every one or two months. In this connection, a source has supplied three cassette tape recordings on the condition that his identity will be kept secret. These cassettes are also made over herewith (one copy of each is trained).
Based on the above information, telephone no. 4693959 was put under observation. It was found that abnormally large number of incoming calls are received on this telephone particularly in the late CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 22 of 91 evening, night and morning hours. It was also found that frequent calls were made from this number to a particular Faridabad number. From these observations, it appears that frequent incoming calls are from the various selected customers for providing international calls to them and frequent outgoing calls to Faridabad number are for passing on the details to the operator for connecting the particular international calls. A print out of the observation of phone No. 4693959 is enclosed. It appears that Shri B. S. Meena, Smt. Ram Kali Meena, Shri Satinder and other accomplices are pocketing huge amounts through the running of this racket at the cost of public exchequer.
It is requested that a case may be registered for further legal action.
( A.K. Sharma) A. E. VIGILANCE "
6.2.The verbatim contents of 2nd letter Ex. PW 1/B are as follows:-
"To, S.P. C.B.I. AC Branch, CGO Complex, Lodhi Road, New Delhi.
No. Vig/GC-30/301/JB/94/10 Dated 27.1.94.
Sub: Racket of Providing International Telephone calls at cheap rates to selected customers- Parallel monitoring and Audio tape recording of conversation on Tel-4693959.
This is in connection to this office letter even no. dated 24.1.94 on the subject. To investigation/detect suspected fraudulent use of tele. no. 4693959 the line of this telephone was mentioned in parallel and Audio tape recording was done between 1600 Hrs to 2100Hrs by Sh. A. K. Sharma AE and Sh. Rajender Kumar JTO(Vig) on dt. 24.1.94 in presence of Vigilance Officer after obtaining approval of the CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 23 of 91 competent authority.
Immediately after the recording a copy of this cassette was prepared & is kept in this office. Original cassette which was properly sealed there & then on the 24.1.94 itself, is enclosed herewith please.
Encl. As above. (A.K. Sharma)
A. E.
(VIGILANCE)"
6.3.During his cross-examination, PW-1 has stated that he had lodged this complaint at the instance of his Director and he does not know the source as on date. On the basis of this complaint, FIR Ex. PW 28/1 was registered and investigation by Sh,. R. K. Dutt (SP CBI was marked to Dy. SP CBI K. S. Joshi PW-28.
6.4.The back bone of the prosecution case is the searches conducted by its officers at different premises.
Search at 14/7, Pant Nagar, Jangpura Extension (House of A-1).
6.5. As per PW 28, complainant Sh. A. K. Sharma (PW-1) met him in CBI office. He verified the contents from PW-1. He then discussed likely plan of action in respect of investigation with SP R. K. Dutt and it was planned that searches be conducted at various places on the next day. Dy. SP S. K. Peshin (PW 15) and Dy. SP R. S. Jaggi (PW29) were deputed in this regard. PW-15 was authorised under Section 165 Cr.P.C. to conduct searches at village Fatehpur Chandela, Faridabad and PW-29 R. S. Jaggi was authorised to conduct searches at Sarva Priya Vihar, Delhi. The deputed teams accordingly went for searches in the morning of 25.1.1994.CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 24 of 91
He led team for conducting search at Pant Nagar near Bhogal, New Delhi. He reached at the house of telephone inspector B. S. Meena, (A-1) at about 9.15 AM along with 2 independent witnesses and CBI staff. When they knocked at the door of the house, it was not opened. When he issued warning to break open the door in case it was not opened, at about 10.30 AM, rear door of the house was opened. After giving introduction and disclosing the purpose of their visit, they all entered in the house for search from rear side and searched the premises of A-1. During the course of search, from a plastic bucket being used as dustbin, paper slips bearing scribbling of telephone numbers along with cash amount of nearly Rs. 1,06,000/- wrapped in polythene was recovered. Slip pad, visiting cards and papers related to booking of telephones were also recovered from the bed room in the house. During the course of search proceedings, some telephone calls were received on telephone installed in drawing room of the premises. The calls were being made by one Ms. Rashmi from Naraina Industrial Area. She was requesting for being connected to ISD numbers given by her. An answering machine was installed in the said telephone connection and a blank cassette was inserted therein. Calls received and talks being held were recorded in the said audio cassette. On being asked, calls received were attended by A-1. MTNL staff accompanying them also helped them in the process. One Naveen had also made a call requesting for being connected to STD number. Associate of A-1 at Sarvpriya Vihar and village Fatehpur Chandela, Faridabad were called upon by A-1, under his directions, to connected Rashmi and Naveen to ISD and STD number given to them. All these matured telephonic calls were duly recorded in the cassette inserted in the answering machine. Thereafter, cassette was taken out and sealed in the presence of the witnesses with the seal of CBI. The CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 25 of 91 entire proceedings continued till 3.15 to 3.30 PM and thereafter they all returned to CBI office along with A-1. Memos were duly prepared at the spot in respect of the search conducted and the recording done. Ex. PW 4/D is observation-cum-seizure memo prepared in this regard. Two independent witnesses M. S. Negi (PW-4) and Sh. Bansi Lal (PW-5) also joined the search. The paper slips Ex. PW 5/A (D-33 to 37) were recovered from from house of A-1. The slips contains the particulars of the persons who had been enjoying illegally the facility of STD/ISD calls being made in connivance with the accused. A-1 was arrested and his personal search was conducted. He interrogated A-1 and a disclosure memo Ex. PW 4/H was prepared. In pursuance of the said disclosure memo, A-1 took them to the house of owner/landlord Kishori Lal (PW-26) in the village Fatehpur Chandela, Faridabad. A-1 further made disclosure statement in the form of discourse-cum-observation memo Ex. PW 4/K. In pursuant thereof A-1 took them to a premises in Sarvpriya Vihar and pointed out towards a basement. As regards the telephone installed at Fatehpur Chandela, Faridabad, name of owner and address were inquired from the concerned telephone exchange and on visit to the said address, named persons were not found residing there. He further proved seizure memos Ex. PW 28/4 to 28/8.
6.6.PW-4 M. S. Negi and PW-5 Bansi Lal are stated to be two independent witnesses who had joined the IO (PW-28) during the search of house of A-1.
6.7.PW-4 M. S. Negi, UDC, Joint DGFT, Asaf Ali Road, New Delhi has admitted to have joined IO (PW-28) in the search of residence of A-1 at Jangpura. As per him some paper were collected from the residence of CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 26 of 91 A-1 and they were made to sign on some papers as witness. They also visited Faridabad next day at some house. This witness was cross- examined by Ld. PP for CBI. During his cross, he stated that his statement was not recorded by CBI and only his signatures were taken on some papers. He admitted that cash amount of about Rs. One lac was recovered from the house of A-1. He admitted that while search of the house of A-1 was going on, a telephone call was received from Naraina but he cannot say whether caller was Ms. Rashmi. He admitted that conversation on telephone was recorded in the blank cassette and the cassette was sealed in an envelope. He admitted that he again joined CBI team on 27.1.1994 and visited house no. 62/13, 2nd floor, Naraina of Ms. Rashmi. He admitted that the diary seized from the house of Ms. Rashmi is Ex. PW 4/A which bears his initials on written pages. He also admitted that his signatures on the register Ex. PW 4/B and identified his initials on pages from 25 to 30. He stated that this register Ex. PW 4/B was produced by Ms. Rashmi. He further admitted that on 28.1.1994, he again joined CBI team and visited house in Sarvpriya Vihar where they met a lady named Sahni but he cannot say whether she was Leela Sahni and she had let out the basement of her house. From there they had left for village Fatehpur Chandela, Faridabad, where A-1 had taken a room on rent and two telephones were found installed there. He admitted that A-1 was identified by the landlord but he does not recollect that the landlord identified A-1 as Malik of Raman Sahib, employer of Salim. He identified his signature on memos Ex. PW 4/C to F, personal search memo of A-5, A-2, A-3, A-4 and A-1 as Ex. PW 4/G-1 to G-5, the disclosure statement of A-1 Ex. PW 4/H, memo regarding their visit to village Fatehpur Chandela Ex. PW 4/J and disclosure statement as Ex. PW 4/K and 4/L. During his cross-examination he stated that he has no CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 27 of 91 knowledge that who had taken the room on rent in Fatehpur Chandela, Faridabad and he did not hear any conversation between B. S. Meena and Rashmi about some telephone account. This witness was confronted with his statement mark "X" (stated to have been recorded by CBI under Section 161 Cr.P.C.).
6.8.PW-5 Bansi Lal was posted as LDC in Licensing Assistant Office of Zonal Joint Director, General of Foreign Trade, Asaf Ali Road, Delhi. He admired to have accompanied CBI officials to Jangpura on 25.1.194 to the house of A-1 but refused to identify A-1 as B. S. Meena. He also admitted to have been taken to Faridabad. He was also cross-examined by Ld. PP for CBI. He denied to have made any statement to CBI. Despite elaborate cross-examination, he did not support the prosecution regarding the other proceedings stated to have been conducted by CBI team headed by IO (PW-28) at the house of A-1. He admitted to have accompanied CBI officials to village Fatehpur Chandela, Faridabad next date but denied all the proceedings stated to have been conducted by CBI team there. However, he identified his initials on paper slips Ex. PW 5/A (colly.), phone index diary Ex. PW 4/A and register Ex. PW 4/B. He also identified specimen handwriting of A-6 on S-35 to S-44. During his cross-examination, he admitted to have signed the memos without reading the contents as there was no time to read the memos. He admitted that A-1 had not made disclosure statement in his presence.
Search at Village Fatehpur Chandela, Faridabad 6.9.PW-29 R. S. Jaggi, Dy. SP, ACB deposed that in pursuance to authorization in his favour by PW-28, he conducted search at premises in village Fatehpur Chandela, Faridabad at the house of one Kishori Lal.CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 28 of 91
The searched premises was rented under tenancy of S. S. Meena, (A-6). The search team included CBI officers and independent witnesses. He had prepared search-cum-seuzre memo Ex. PW 7/X in respect of search proceedings. Complete details of the search proceedings are recorded therein. Ex. PW 7/X was written by Inspector A. Singh on his dictation on the spot. A-6 was initially not present at the spot, reached at the spot subsequently and search was conducted in his presence.
6.10. As per this search memo Ex. PW7/X, A-6 allowed the search of his room after opening the lock. During search it was found that telephone instrument make Panasonic was installed in the room and it was having two telephone lines of telephone no. 219285 and 219243 connected to it. One more telephone instrument, not connected to any telephone line was also found there. The conference facility was tested on being asked by S. K. Peshin, in charge of another team, who was conducting search at premises no. 12/19, Sarv Priya Vihar having telephone no. 653066 to make a call to USA to his relation having telephone no. 0014044274066. In the presence of all members, A-6 dialed this number on the telephone line having STD/ISD facility. On receiving response from USA, A-6 connected PW-15 who was already holding the line of telephone no. 653066. The whole talk was made by using speaker system available in the telephone and was also heard by all the persons present there. At about 12.30 PM, he received a telephone call from PW-28 Sh. K.S. Joshi, who was conducting search at the residence of A-1 at Pant Nagar. IO PW-28 informed that one party named Rashmi and Prithpal Singh A-7 had contacted A-1 at his residence on telephone no. 5705565 asking that they should be connected to overseas no. 0096614761995. This message was heard by independent witness on the speaker phone CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 29 of 91 system. A-6 was asked to call back on telephone no. 5705565 an d comply with the instructions received. Keeping the speaker system on, A-6 dialed telephone no. 5705565 on line number 1, i.e. telephone no. 219285. A-6 was asked by A-7 and Rashmi to connect the overseas number. A-6 using conference button, kept A-7 on hold and dialed overseas number as asked by A-7. Number got connected and one Shri Singh responded. A-7 asked for "Shiv" and he was informed that "Shiv"
was not available and the call was disconnected by A-2. A-7 then asked A-6 to connect to another overseas number 0096614058887. A-7 and Rashmi again inquired for "Shiv" and conversation continued for about 12 minutes. The conversation was clearly audible on the speaker and was heard by all the persons including independent witnesses. During search, A-6 was asked to produce whatever documents were in his possession. Documents produced by A-6 and telephone instruments were seized.
6.11.During his cross-examination, PW-29 has stated that he had not seen instrument make Panasonic in the court during the course of his examination. During his cross by A-1 and A-6, he has stated that documents Ex. PW 5/A (D-33 to D-36) were seized by him from Fatehpur Chandela. He had not seized any rent receipt or rent agreement in respect of the premises being under tenancy of A-6. None of the neighbour was called upon nor the Gram Pradhan asked to join the proceedings as the team already had independent witnesses and the landlord.
6.12.PW-7 Ratti Ram is the independent witness who is stated to have joined PW-29 in the search. He has only deposed that on that day, he along with his colleague Sanjay Sharma had gone to CBI office and from CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 30 of 91 there he accompanied CBI team to Fatehpur Chandela. He does not remember as to whose house they had gone and nothing had happened in his presence. He remained seated out side on a cot and after 30/35 minutes they came back from there. This witness was declared hostile and cross-examined by Ld. PP CBI at length. But he did not support the prosecution in any manner.
6.13.The other witness Sanjay Sharma who is stated to be colleague of PW-7 was not examined as a prosecution witness.
6.14.PW-26 Kishori Lal is the owner of house at village Fatehpur Chandela, Faridabad. He turned hostile and refused to have let out any room or any portion of his house to any one in January, 1994. He denied that CBI officials had ever visited his house in January, 1994. He was cross-examined by Ld. PP for CBI. Though, he admitted his signature on search memo Ex. PW 7/X and disclosure-cum-observation memo Ex. PW 7/J but stated that his signatures were obtained on these documents by police officials under threat and police officials had met him on the road side of his house.
SEARCH AT 12/19, SARVPRIYA VIHAR, NEW DELHI 6.15. Here at this premises, search was conducted by PW-15 Shri S.K. Peshin, Dy. S.P, CBI, ACB along with PW-2 Shri Ashutosh Sharma and PW-3 Shri Naresh Kumar, both independent witnesses. PW-15 has deposed that they had visited to carry out search at 12/19, Sarvpriya Vihar owned by Mrs. Lita Gidwani, who was present there and was informed the purpose of their visit. Mrs. Lita Gidwani told that the telephone No. 653055 was belonging to her mother and had three extensions, the main CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 31 of 91 one in the Bed Room, one in the Drawing Room and other in the basement. During search, they found that one extension of said telephone was working in the basement. They went to the basement and found that this telephone was being operated by A-5. A-5 was using this telephone for the purpose of illegal running of STD and ISD facility from the basement of said building and this service was being provided from Faridabad. They also found some torn slips from dustbin in the said basement containing details of some telephone calls. At about 11.30 A.M. during search, he received a call from Shri R.S. Jaggi, Dy. S.P. CBI (PW-29) who had gone to carry out simultaneous raid at Faridabad. The number of the Phone from where call was received was '8219285'. He asked PW-29 as to whether ISD facility could be available on telephone No. '8219285' and on extension No. '653066'. He gave him telephone number of USA i.e. 0014044274066 which was of Atlanta and his sister was using it. The purpose of giving this telephone number to PW-29 was to get it verified as to whether on telephone No. 8219285(No is 219285 and probably '8' as prefix got added on all numbers of the exchange) and extension No. 653066, ISD facility could be used or not. After about 2 -3 minutes, he received a call from PW-29 from Faridabad informing him that the ISD facility was checked and this call has matured. He had seen various customers who were coming in the basement , requesting A-5 to provide them ISD service on various telephones of Pakistan, Afganistan, Uganda, Jordan & various other countries. One Mohd. Safiq, a Jordanian residing at South Extension came there and wanted to make call to Jordan. He had noted names of those persons who came there to make ISD calls and A-5 used to charge Rs.15/- per minute. They seized the telephone instrument which was used in the basement. A-5 was arrested. He prepared a Memo of proceedings conducted there which is CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 32 of 91 Ex.PW-2/A. It was signed by Ms. Lita Gidwani. Ms. Lita Gidwani had handed over him five telephone bills which were seized vide Production Memo Ex.PW-3/A. He had seized torn slips after pasting them on one sheet of paper. At the spot, he had found one Note Book in which only one page was written and remaining were blank. The same was seized. The torn paper slips pasted on paper were identified by this witness and same was marked as Mark P-15/A. 6.16. PW-2 Ashutosh Mishra and PW-3 Naresh Kumar, two independent witnesses had joined PW-15 in this search. PW-2 deposed that on 25.1.1994, he was working as Assistant in Directorate of Estate, Ministry of Urban Development. He was directed by his controlling authority to reach CGO Complex early in the morning in the office of SP CBI Mr. Joshi. He along with CBI officials left for Sarvpriya Vihar near Malviya Nagar, a residential house, there they went to basement where one lady was present in the house at the first floor. In the basement one person was present attending the telephones whose name he does not remember. One call came from some place on telephone installed in the basement from unknown place, who asked to connect him to a number in USA. Number was connected and the person talked to USA from the telephone installed in the basement. He identified his signatures on the memo Ex. PW 2/A. During cross-examination by accused, he stated that he does not remember the telephone number installed in that premises. He does not know from which telephone number the call was received at the spot. He does not know any Mehtab Singh, Salim Khan and Balbir Singh.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 33 of 916.17.PW-3 Naresh Kumar was posted as UDC, Ministry of Commerce, Zonal Joint Director General, Foreign Trade, Asaf Ali Road, New Delhi. He deposed that on 25.1.1994, he was associated in the raid as a witness. They went to Sarvpriya Vihar for raid in house no. 12/19. One Lita was present in the house where Balbir Singh (A-5) was present. Two-Three persons were also present making telephone calls. One person also came in their presence for making a call. The call matured but he does not know what conversation took place. The calls were ISD calls and the call which matured was to some foreign country. The lady present in the house had told that she had let out the basement to one Salim. Lot of writing work was done there and some papers were recovered from dustbin. He identified his signatures on memo Ex. PW 2/A and Ex. PW 3/A. During his cross-examination, he stated that except the papers seized from dustbin, no other papers were recovered and seized. He cannot tell who had written memo Ex. PW 2/A and Ex. PW 3/A. 6.18.Ex. PW-2/A (D-5) is the Memo prepared by PW-15. Here he has mentioned the names of various persons namely Afgan National Sh. Sher Mohammad, who wanted to make a call to Kabul, Mr. Hamzan, who wanted to make a call to Kabul at No. 62022, Ms. Suran a Ghana National who wanted to make a call to Ghana Telephone Nos. 00256-41-233593& 44-206-766185. Ms. Suran had informed that she had talked at a number at Ghana for 15 minutes and paid total Rs.30/- for this conversation. At about 10.30 A.M., one incoming call of one Bobby's mother came and she asked about A-5 and she wanted to make a call to Hong kong No. 519677. At about 10.40 A.M., Vijay Singh, SDO (Phones) of the area was called and directed to draw the complete diagram of the said telephone line and he did it. Ms. Lita Gidwani informed that entire CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 34 of 91 telephone bills are being paid by Shri Salim to whom basement has been rented out as she seldom makes local call. A-5 informed him that he charges Rs.15/- per minute from the Customers and daily income comes to around Rs.3000/- approximately. The entire amount collected is paid to Shri Salim. Thereafter, one Mohd. Shafiq, a Jordanian National came there to make a call to Jordan and informed that he was a frequent visitor to this place. One Pakistani National also came and wanted to talk to Quetta telephone No. 9281-821785 but his call could not be connected.
The procedure for sanction & installation of new telephone connection.
7.0.The case of the prosecution is that A-1 was contacting private customers on non-STD telephone no. 4693959 and used to obtain ISD/STD number from such customers who desired to talk on ISD/STD from their residence. A-1 used to convey this message either to A-6 at village Fatehpur Chandela or to A-5 at 12/19, Sarvapriya Vihar, New Delhi. A-4, A-5 and A-6 in pursuance to the directions given by A-1 used to connect STD/ISD lines to such customers through the help of conference facility. The customers were able to talk with the person out side Delhi and out side India. A-1 and A-6 used to collect the amount charged for illegal calls. These calls were recorded for these telephone numbers but the subscriber of these number did not exist. The total bills of these telephone numbers ran to the tune of Rs. 15,15,814/-.
7.1. As per prosecution case for operating this racket, accused persons were using mainly 4 telephone numbers. Two numbers, i.e. 219243 (with STD/ISD) and 219285 (without STD) were installed at house in Fatehpur Chandela, Faridabad. Two Telephone numbers, i.e. CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 35 of 91 216701 and 212459 were installed at 5K/91, NIT Faridabad. As per prosecution case all these 4 telephones were got installed by A-2, in conspiracy with A-4 (lineman) & A-5 RM (Regular Mazdoor) at these two premises, on the requirements of A-1.
7.2. To explain the procedure of booking and allotment of telephone in special category in the year 1995-96, prosecution has examined PW 22 Edal Singh, who was working as Director, Department of Telecommunication, Ministry of Telecommunication, Govt. of India. The procedure explained by him is as follows:-
•As per him special category subscribers included professionals like advocates, doctors, chartered accounts, owners of small scale industries etc. For such connections applicant used to submit application along with affidavit and relevant certificate entitling him to practise as a professional or registration certificate/bank certificate of being owner of small scale industry.
•The application was to be submitted to dealing assistant in the office of Asstt. Engineer (Public Grievances).
•In case any applicant had already booked telephone in ordinary category, then he used to submit application for conversion to special category by submitting the same in the office of Commercial Officer. •Dealing Assistant used to scrutinize the application and the documents by comparing with the original. After his satisfaction, he used to put up the same before Assistant Engineer (Public Grievances) or DCO, from there, after examination such application used to be sent to DE (Administration) with recommendation/approval. •DE (Administration) used to approve allotment in special category and CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 36 of 91 from his office said application used to be sent back to Assistant Engineer (Public Grievances) or DCO.
•From there it used to be sent to the commercial section with demand note used to be issued by commercial section for booking amount. On receipt of payment, the said application used to be registered in the relevant waiting list register.
•Turn wise telephone connections used to be released to the applicants. On release of telephone, order book (OB) used to be prepared by Dealing Assistant in commercial section and the same used to be issued under signature of commercial officer. •It was duty of dealing assistant/supervisor/commercial officer to see that O.B. has been issued correctly in all respect before signing the same and sending the same to the concerned SDO.
Regarding telephone no. 212459 7.3. Regarding this telephone number, the relevant points in deposition of this witness are as follows:-
• The file pertaining to this number is Ex. PW 22/1. It is containing application Ex. PW 22/2 by the name of Narender Sharma resident of 110-NH, NIT, Faridabad.
•As per note sheet Ex. PW 22/3 dated 21.9.1993, Sh. Dalip Chandra, Commercial Officer had issued OB no. 128210888 dated 21.9.1993 for installation of the said telephone. As per Ex. PW 22/3, this application was approved by Assistant Engineer (Public Grievances) & DE (Administration) to be installed at 110-NH, NIT, Faridabad in the name of Narender Kumar Sharma.
•Vide letter (Ex. PW 23/3-A) dated 1.10.1993 in the file Ex. PW 22/1, the Commercial Officer had informed the applicant Narender Sharma CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 37 of 91 regarding issuance of OB (Ex. PW 22/3-B) for installation of telephone connection.
•In the OB, address of subscriber has been shown as 5-K/91, NIT, Faridabad, against approved addressed as mentioned in note sheet Ex. PW 22/3.
•Application Ex. PW 22/4 is for providing STD dynamic facility. Here address of applicant is mentioned as 5-K/91, NIT, Faridabad. Vide note Ex. PW 22/3, the Commercial Officer had provided dynamic STD facility on this telephone no. 212459 on 31.1.1994.
7.4. Regarding telephone no. 216701 •The file regarding this number is Ex. PW 22/5. It contains application Ex.
PW 22/6 in the name of Vijay Kumar resident of Block-F, Kothi no. 1, Eros Garden, Faridabad.
•Note sheet Ex. PW 22/7 is in the hands of this witness (PW 22), Divisional Engineer (Administration). He had approved installation of this telephone.
•O.B. No. 128210910 dated 5.11.1993 Ex. PW 22/8 was issued by Sh. Dalip Chandra, then Commercial Officer for installation of this telephone at the given address.
•As per note sheet Ex. PW 22/7, there is no mention of any request for change of address moved by the subscriber.
7.5. Regarding telephone no. 219243 •Ex. PW 22/9 is file regarding this number containing application form Ex. PW22/10 in the name of Dr. Laxmi Kumari resident of 5B/81, NIT, Faridabad and thereafter Sh. S. K. Aggarwal Assistant Engineer (Public Grievances) recommended this connection.
•On that basis this witness (PW-22) had approved telephone connection CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 38 of 91 in Non-OYT special category. This approval was for without STD vide note sheet Ex. PW 22/11.
•Ex. PW 10/C is O. B. No. 12810938 dated 29.12.1993 issued under the signature of Sh. Dalip Chandra, then Commercial Officer for this connection.
•This connection was sanctioned without STD. The subscriber had not made any request for installation of this telephone at another address, i.e. Fatehpur Chandela.
7.6. Regarding telephone no. 219285 •Ex. PW 22/12 is the file regarding this telephone number containing application Ex. PW 22/13 in the name of Jagdish Sharma, proprietor of M/s Hydro Flex Industries to be installed at near Panchayat Ghar, Fatehpur Chandella, Faridabad.
•Ex. PW 22/13 is the note sheet containing recommendation for installation of this telephone by Sh. S. K. Aggarwal, Assistant Engineer. On this recommendation, this witness (PW22) approved installation of telephone connection Non-OYT special category vide note Ex. PW 22/14. •The O.B. no. 128210966 dated 10.1.1994 was issued for installation of this telephone connection without STD. Sh. Dalip Chandra, the then Commercial Officer had made note at point "C" regarding this on note sheet Ex. PW 22/14.
•Ex. PW 22/15 is the applicant of Jagdish Sharma requesting for providing dynamic STD/ISD facility on the said telephone connection at House No. 5K/91, NIT, Faridabad.
•As per note sheet Ex. PW 22/14 and file Ex. PW 22/12, neither any request nor any order is there in respect of installation of this connection at 5K/91, NIT Faridabad. Accordingly, this connection was wrongly CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 39 of 91 installed at this address against the sanction/approval.
7.7. Careful perusal of files Ex. PW 22/1 (telephone no. 212459), Ex. PW 22/5 (telephone no. 216701), Ex. PW 22/9 (telephone no. 219243) and Ex. PW 22/12 (telephone no. 219285) and the corresponding note sheets and OBs issued reveal that in the applications addresses mentioned were different, the telephones were sanctioned and OBs were issued by Sh. Dalip Chandra, the then Commercial Officer for the same addresses but telephones were found installed at different addresses. The observation memo Ex. PW 7/Y and Ex. PW 13/A establish that the applicants of these phone numbers had never resided at the given assesses mentioned in their respective applications.
7.8 Ex. PW 7/Y is the observation memo regarding this search. PW 29 R. S. Jaggi had conducted this search. He has deposed that he had gone to 5B/81, NIT Faridabad for verification of one of the address which was found mentioned in the file seized from telephone department vide memo Ex. PW 29/1. He identified his signatures on the observation memo E. PW 7/Y. He deposed that whatever was observed at the spot in respect of connection was mentioned in the memo. As per contents of this memo PW 29 R. S. Jaggi visited this premises along with S.K. Panchal and Jagat Ram, both sons of respective owners of the said premises who told that property exists in the name of their parents, i.e. half portion in the name of Smt. Savitari Bai and Ram Kakkar. Both the persons informed that no person by the name of Laxmi Kumar daughter of Sh. Ganga Prasad had ever resided there either as tenant or in any other capacity.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 40 of 917.9. PW-7 has not supported the prosecution regarding this search. He has only identified his signature on the memo Ex. PW 7/Y. He has clarified that he has signed this memo after coming to CBI office. The other two persons who are started to be present there namely Sh. S.K. Panchal and Jagat Ram, only one was not examined by the prosecution.
7.10. PW-20 Sh. S.K. Panchal has deposed that he along with his brother Laxman had been residing in house no. 5B/81, NIT, Faridabad for the last 40 years. He identified his signatures on Ex. PW 7/Y. He further stated that no telephone having no. 219243 was ever installed in their said house. During his cross-examination, he deposed that there are 2 portion of this house, one portion of this house is in his possession of him and his brother and other portion is in possession of Daulat Ram. He is not aware if telephone no. 219243 was ever installed in portion of the premises in possession of Sh. Daulat Ram.
7.11. PW-7 and PW-20 have not strictly supported PW-29 R. S. Jaggi regarding this observation memo Ex. PW 7/Y. As per Ex. PW 22/9, on the applications vide which telephone no. 219243 was sanctioned, original address mentioned is 5B/81, NIIT, Faridabad. Moreover, as per search proceedings Ex. PW 7/X this number was found installed at the premises in village Fatehpur Chandela, Faridabad. Accordingly, it stands establish that at the addresses mentioned for sanction of telephone no. 219243, the applicant Laxmi Kumar never resided and telephone was never got installed there.
7.12. Ex. PW 13/A is observation memo dated 8.2.1994 prepared by CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 41 of 91 main IO PW 28 K. S. Joshi. As per this memo, IO PW 28 along with witnesses S. S. Garg, Dy. Manager and Sh. M.L. Gauri, DIR Assistant, SBI, Faridabad, Sh. Kamal Bhagat Divisional Engineer, E-10-B Exchange, Faridabad (PW-8) and Sh. Awadesh Kumar (PW-11), SDO Telephone Exchange Faridabad reached at 5K /91, NIT Faridabad. Sandeep Khanna and his father Narain Dass Khanna, landlord of the house met them. They informed that no person practicing in medicine or Doctor by the name of Narender Sharma and Vijay Kumar ever resided in his house since Feb. 1993. They further told that one person posing as businessman dealing in cloth business introduced himself as Ramesh Kapoor, somewhere in October, 1993 had taken the front room of the house at a monthly rent of Rs.600/-. Two persons have resided with the said Ramesh Kapoor, out of which one was stated to be his wife Renu. They resided there upto 13.1.1994. Two telephones were installed in the said room, out of which telephone no. 212459 was in operation. The CBI team with the help of Kamal Bhagat (PW-8) and Avadesh Kumar (PW-11) verified installation of two telephones in the said room. With the help of two telephone instruments arranged from telephone exchange through PW-11, two lines and the numbers installed were checked by requesting Sh. Vijay Singh wireman Nehru Ground Telephone Exchange. The Telephone no. 216701 was found working as bell rang on it, another number was reported broken out.
7.13. PW 11 Awadesh Kumar is silent if he accompanied IO PW-28 to house No. 5K/91, NIT Faridabad on 8.2.1994. Similarly, PW-13 Sh. S. S. Garg has just identified his signatures on Ex. PW 13/A. On the request of Ld. PP, witness was allowed to refresh his memory by showing CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 42 of 91 the proceedings Ex. PW 13/A and thereafter he stated that they had visited house no. 5K/91, NIT Faridabad. PW 8 Kamal Bhagat is also silent if he had accompanied IO PW-28 to this premises on 8.2.1994. It is relevant to mention here that as per applications Ex. PW 22/5 for telephone no. 216701 and Ex. PW 28/12 for telephone no. 219285 addresses mentioned by the applicants Vijay Kumar and Jagdish Sharma are 5K/91, NIT Faridabad.
7.14. Prosecution case is mainly regarding telephone no. 219285 and 219243 which were found installed at premises in village Fatehpur Chandela, Faridabad which was stated to be rented out to A-6 by landlord Kishori Lal (PW-26). As already discussed though Kishori Lal has turned hostile and has not supported the prosecution in any manner but even if the statement of PW-29 R. S. Jaggi who prepared search cum seizure memo Ex. PW 7/X is believed, it stands established that these telephone no. 219243 and 219285 were installed at the premises at village Fatehpur Chandela, Faridabad despite the fact that installation of these 2 numbers was never sanctioned, approved by PW-22 or any other officer of the department for installation at this premises.
7.15. These searches by PW-15 at premises 12/19, Sarv Priya Vihar, New Delhi, PW-28 Sh. K. S. Joshi at 14/7, Pant Nagar Jangpura Extension and by PW-29 R. S. Jaggi at Village Fatehpur Chandela, Faridbad, taken on the face value and as already discussed being not supported by independent witnesses, who accompanied them, only goes to establish the factum of these searches and presence of A-5 at 12/19, Sarv Priya Vihar, A-1 at 14/7, Pant Nagar (which was stated to be his CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 43 of 91 residence) and A-6 at village Fatehpur Chandela, Faridabad.To establish meeting of mind and agreement amongst the accused persons, these observation memos are the back bone of the prosecution case. But because of the various deficiencies mentioned below, prosecution has failed to establish interlink, between these premises, accused persons stated to be found there and if all these premises were serving object of conspiracy as alleged by prosecution:-
(i) As per Ex. PW 4/B, i.e. search memo of premises no. 14/7, Pant Nagar, the calls made by one Rashmi from Naraina Industrial Area and one Navin requesting being connected to ISD number to A-1, were recorded in audio cassette. But these audio cassettes were never produced before this court. Neither the transcript of these conversations allegedly containing voice of A-1 was prepared or sent for voice identification, nor the said Rashmi and Navin who were stated to have asked A-1 to connect them to ISD calls were examined as witness before this court. They could have been very relevant witnesses to prove the conspiracy amongst accused persons or at least implicating A-1.
(ii) The owner of the premises 12/19, Sarvpriya Vihar Ms. Lita Gidwani was not examined.
(iii) No evidence on record to establish that USA no.
0014044274066 given by PW-15 S. K. Peshin was connected through telephone no. 219285 installed at village Fatehpur Chandela, Faridabad from the extension of no. 653066 installed at Sarvpriya Vihar.
(iv)As per memo Ex. PW 2/A, number of foreigners came there to make international call but none of them was cited as a witness or examined before this court. Statements of these persons were very relevant and could have thrown light on the manner in which this racket was being operated and who was behind and the main person operating this illegal CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 44 of 91 racket.
(v)As per main IO Pw-28 A-1 after his arrest has made disclosure statements Ex,. PW 4/H on 28.1.1994, Ex. PW 4/K on 28.1.1994, Ex. PW 4/L on 28.1.1994. The contents of these disclosure statements are self implicating A-1 but these are of no use to the prosecution as it had not led the CBI to any discovery of fact which could have been used as a piece of evidence in the light of Section 27 of Indian Evidence Act.
(vi)To establish that telephone no. 4693959 was installed at 14/7, Pant Nagar at the residence of A-1 and from this regular calls were made at the two telephone numbers, i.e. 219243 and 219285 at the premises at village Fatehpur Chandela, Faridabad, Call Detail Record of these numbers was most material evidence but no such evidence has been brought before this court in this trial Similarly, other prosecution allegation is that from telephone no. 653066 installed at 12/19 Sarvpriya Vihar, A-5 used to get STD/ISD calls connected through the two telephone numbers mentioned at Fatehpur Chandela, Faridabad on the demands of customers who wanted to make STD/ISD calls. The call details record of telephone number installed at Sarvpriya Vihar would have thrown light on this aspect and was the most material evidence in this case to establish the conspiracy between different accused persons. PW-15 S.K. Peshin has seized five telephone bills of telephone no. 653066 given by some Lita Gidwani vide memo Ex. PW 3/A but these bills were never proved during trial.
(vii)One of the main prosecution allegation is that total loss of Rs. 15,15,814/- was caused to MTNL by this unauthorized racket of doing cheaper STD/ISD calls in conspiracy by different accused persons. The prosecution case is that mainly STD/ISD calls were connected from 4 telephone numbers installed at village Fatehpur Chandela, Faridabad CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 45 of 91 and 5K/91 NIT, Faridabad. The bills of these phone numbers were the crucial evidence in this case to establish the revenue loss of Rs. 15,15,814/- caused to MTNL but to the reason best known to the prosecution, again it failed on this front and no such bills were proved on record.
(viii)The only evidence which has come on record is to establish that from telephone no. 219243 installed at village Fatehpur Chandela, Faridabad, two international calls were made by Ms. Rashmi and A-7 through conference facility is Ex. PW 8/A, which is also not inspiring confidence, as discussed in detail in paras below.
7.16. It has come in the statement of main IO PW-28 that while conducting search at the residence of A-1 one party named Rashmi and Pritpal Singh (A-7) contacted A-1 at his residence from telephone no 5705565 asking him to connect overseas number 0096614761995. A-6 at village Fatehpur Chandela was asked to call back on telephone no. 5705565 and comply with instructions received through line no.1 i.e. 219285 and he was asked by the said Rashmi and A-7 to connect on this overseas number. Number got connected but desired person Shiv was not available. On 2nd number 00961405887 given by A-7, concerned person Shiv was connected and A-7 talked with him for about 12 minutes.
7.17. To establish this conversation from telephone no. 219285 on these two overseas number, allegedly given by said Rashmi and A-7, prosecution has relied upon Ex. PW 8/A which is stated to be detailed billing data of telephone no. 219243 proved by PW-8. PW-8 Sh. Kamal Bhagat was posted at E-10-B, Telephone Exchange, Faridabad from December, 1992 to March, 1996. He deposed that it is a digital electronic CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 46 of 91 exchange and provides local/STD/ISD facilities to the subscribers. Tapes generated from this exchange, meter reading and detailed billing are sent to account branch on 15th of every month. At that time there was no facility in Faridabad Exchange and billing was done from Nehru Place, MTNL Center, Delhi. The detailed bill of telephone no. 219285 which is Ex. PW 8/A bears his signature. This bill is of 25.1.1994. On 25.1.1994 he has found that there was some technical snag in exchange as reported to him by ADET. On that day, he has found that standby recording unit was also having some problem due to which data for about one hour got missing but there was no revenue loss to the exchange and only detailed billing information (supplementary information) was lost for the complete exchange.
7.18. Ex. PW 8/A is running into two pages. It shows contact was established at 12.56PM on 25.1.1994 between telephone no. 219243 and 009661476995 and at 1.32 PM contact was established between telephone no. 219243 and 0096614058887. It is not possible to make out from it if 219243 is caller number or called number. It is relevant to mention here that as per PW-22 in file Ex. PW22/9 regarding telephone no. 219243, there was no request made by the subscriber for providing STD in respect of this connection. Moreover, during his cross- examination, PW-22 has admitted that telephone connection wherein facility of STD has been provided, an ISD call could not have been made unless and until ISD facility has been provide therein. He has further admitted that for providing ISD facility in respect of a telephone connection, a fresh OB would have to be issued. It is not the prosecution case if A-2 who was posted as JTO in the concerned telephone exchange feeding this telephone,he in connivance with the other staff posted there, CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 47 of 91 had unauthorizedly connected for ISD/STD facility on this number. Moreover, the credibility of PW 8/A further comes under doubt as PW-8 has stated that on 25.1.1994 due to some technical sang, the standby recording unit was having technical problem due to which data for about one hour got missing. PW-9 Raghvender Gupta, Dy. General Manager was working as Assistant Divisional Engineer on 25.1.1994 in the same exchange. He has deposed that on that day, he found that URM 44 was in NAC condition due to which some racks of Nehru Ground, RLU, Badarpur RLU and Sector 23 RLU were out of order. It was found that TTYs wire were not in executing any command as the monitoring unit was shown to be NAC. Fault in the system was electric fault and not man made fault and this type of fault had occurred previously also.
Conspiracy 8.0.The case of the prosecution is that all the accused persons have acted under criminal conspiracy by resorting to forgery and cheating the department by facilitating the public persons in making STD/ISD calls through telephones installed at village Fatehpur Chandela, Faridabad and house no. 5K/91, NIT Faridabad. The CBI case is that A-1 was the kingpin of this illicit racket and his brother A-6 was operating the racket from the premises at village Fatehpur Chandera and A-5 was operating the racket from 12/19 Sarvpirya Vihar. A-2 was JTO at Nehru Ground Telephone Exchange, A-3 was lineman and A-4 regular mazdoor in the same exchange under this conspiracy have got sanctioned and installed these 4 telephone numbers, 2 at the premises of village Fatehpur Chandela and 2 at premises no. 5K/91, NIT Faridabad. The allegations against A-7 is that he was one of the beneficiary under this conspiracy as he being CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 48 of 91 proprietor of M/s Exceptional Export used to make large number of illegal ISD calls to Saudi Arabia, Germany, USA, England through A-1.
8.1. The criminal conspiracy as defined under Section 120-B IPC is always hatched in privacy. The gist of what constitute this offence was summed up pithily by the Supreme Court in Runu Ghosh Vs. P. Rama Rao [2011 Legal Eagle(Del) 1757] . The relevant paras 132 & 133 are as follows:-
"132. As regards criminal conspiracy, that is one, under Section 120-B, IPC,the gist of what constitutes the offence was summed up pithily by the Supreme Court, in E.G. Barsay Vs. State of Bombay AIR 1961 SC 1762 (an enunciation that was affirmed and applied in several alter decisions, such as Ajay Aggarwal v Union of India 1993 (3) SCC 609, Yashpal Mittal v. State of Punjab 1977(4) SCC 540, State of Maharastra v. Som Nath Thapa 1996(4) SCC 659, Firozuddin Basheeruddin v. State of Kerala, (2001) 7 SCC 596).
"The gist of the offence is an agreement to break the law. The parties to such an agreement will be guilty of criminal conspiracy, though the illegal act agreed to be done has not been done. So too, it is not an ingredient of the offence that all the parties should agree to do a single illegal act. It may comprise the commission of a number of acts. Under Section 43 of the Indian Penal Code, an act would be illegal if it is an offence or if it is prohibited by law. Under the first charge the accused are charged with having conspired to do three categories of illegal acts, and the mere fact that all of them could not be convicted separately in respect of each of the offences has no relevancy in considering the CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 49 of 91 question whether the offence of conspiracy has been committed. They are all guilty of the offence of conspiracy to do illegal acts, though for individual offences all of them may not be liable."
133. There is no doubt that evidence of criminal conspiracy is hard to come by. When such agreements are made, people are not expected to commit themselves in writing, nor are all conspirators necessarily aware of the entire plan, which may be known only to a handful. However, for the Court to draw a conclusion that there was criminal intent, the meeting of minds, there has to be strong circumstantial evidence pointing to the conspiracy......."
8.2. In State (N.C.T. of Delhi Vs. Navjot Sandhu [2005 AIR SC 3820], Hon'ble Supreme Court has held as under:-
"Mostly, the conspiracies are proved by the circumstantial evidence, as the conspiracy is seldom an open affair. Usually both the existence of the conspiracy and its object have to be inferred from the circumstances and the conduct of the accused (Per Wadhwa, J. in Nalini's case (supra) at page
516). The well known rule governing circumstantial evidence is that each and every incriminating circumstance must be clearly established by reliable evidence and "the circumstances proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible". G. N. Ray, J. in Tanibeert Pankaj Kumar [1997(7) SCC 156], observed that this Court should not allow suspicion to take the place of legal proof.
As pointed out by Fazal Ali, J. in V. C. Shukla v. State [1980(2) SCC 665], "in most cases it will be difficult to get direct evidence on the agreement, but a conspiracy can be inferred even from circumstances giving rise to a conclusive or irresistible inference of CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 50 of 91 an agreement between two or more persons to commit an offence." In this context the observations in the case Noor Mohammad Yusuf Mobim v. State of Maharshtra (AIR 1971 SC 885) are worth noting:
"... in most cases proof of conspiracy is largely inferential though the inference must be founded on solid facts. Surrounding circumstances, and antecedent and subsequent conduct, among other factors, constitute relevant material."
8.3.As already discussed in above paras, prosecution has failed to bring any credible evidence on record to establish meeting of mind of all the accused persons. On 25.1.1994 raids were conducted at different premises at Pant Nagar (house of A-1), 12/19, Sarvpriya Vihar, and premises at Fatehpur Chandela, Faridabad. At Pant Nagar, A-1 was found and apprehended, at Sarvpriya Vihar A-5 was apprehended and at village Fatehpur Chandela A-6 was found and apprehended. All the independent witnesses who were joined in this search, as already discussed, have turned hostile by not supporting the prosecution on substantial aspects. The inter link evidence to establish that phone installed at these 3 premises were serving the purpose of conspiracy by making illegal STD/ISD calls by conference facility to the telephone numbers at village Fatehpur Chandela, Faridabad and 5K/91, NIT Faridabad is missing. The prosecution has also failed to bring any evidence on record to establish the surrounding circumstances of the alleged operation by A-1, A-5 and A-6 on the basis of which court could have drawn the clear inference that they all were acting under conspiracy.
GEQD report 9.0. The Ld. counsel for A-1 and A-6 have submitted that no GEQD opinion was taken against A-1. Regarding A-2, Ld. counsel submitted CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 51 of 91 that questioned documents pertaining to him are Ex. PW 5/A which both PW 28 and PW 29, who conducted searches at Pant Nagar at the house of A-1 and the premises at village Fatehpur Chandela, have claimed that these documents were seized by them. It has been stated that this contradictory stand of both these witnesses put shadow of doubt on the credibility of these documents. It has been further stated that specimen writing S-76 to S-106, attributed to A-6 has not been proved by any one and hence, GEQD report cannot be relied upon.
9.1. The GEQD reports have been vehemently opposed by Ld. counsel for A-2 submitting that prosecution has failed to prove the seizure of various admitted documents, i.e. A-1 to A-38 stated to be containing handwriting of A-2. Inspector Ved Prakash, who is alleged to have seized these documents, has died and the testimony of other attesting witness PW-11 is silent regarding this seizure. Same is the contention raised by Ld. counsel regarding the specimen handwriting S-11 to S-22A. Regarding S-1 to S-10, it has been submitted that both attesting witnesses, i.e. PW-4 and PW-5 have not supported the prosecution and testimony of PW-28 is not reliable as there is cuttings on dates. The other important contention raised by Ld. counsel is that the specimen handwriting was taken by police, same is not permissible under the law. Before dealing with the various challenges posed by Ld. counsel of A-1 and A-6 and Ld. counsel for A-2 to the specimen handwriting and seized documents, the contention that since the specimen handwriting was taken by police, the same is not permissible under the law and cannot be considered is taken first.
9.2. To support his contentions, Ld. counsel for A-2 has heavily CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 52 of 91 relied upon observations made by the court in Rakesh Kumar (supra).Hon'ble High Court in para 17 held as under:-
"17. Moreover, the alleged specimen signatures/ handwriting/thumb/ finger print impression of appellant Chandra Shekhar and Sri Chand were obtained during investigation by the IO without prior permission from the Court. Facts in the case of Sukhvinder Singh & ors. V. State of _Punjab, II (1994) CCR 531(SC)=(1994) 5 SCC 152, were that specimen handwriting of the appellant were taken under the directions of the Executive Magistrate during the investigation when no inquiry or trial was pending in his Court. Accused person did not raise any objection thereto yet Hon'ble Supreme Court observed that such specimen writing of the accused persons could not be made use of during the trial and the report of the handwriting expert is thus rendered of no consequence at all and could not be used against the accused to connect him with crime.
In the present case the specimen signatures/writing/thumb impressions were obtained during the investigation without any permission from the Court. Therefore, the case in hand stands on a weaker footing than that of Sukhvinder Singh (supra). Therefore, in view of the law laid down by the Supreme Court in the case of Sukhvinder Singh (supra) it follows that the specimen writing/thumb impression/finger print impression of the appellant Sri Chand, Chandra Shekhar could not be made use of during the trial. The report of the handwriting expert/Finger Print Bureau is thus rendered of no consequence at all and cannot be used to connect the appellants with crime."
9.3. The other landmark judgment of Full Bench of Hon'ble High Court of Delhi is in Sapan Haldar & anr. Vs. State [191 (2012) DLT 225(FB)]. Relevant para of this judgment reads as follows:-
" 31. We answer the reference as follows:-CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 53 of 91
(I) Handwriting and signature are not measurement as defined under Clause (a) of Section 2 of the Identification of Prisoners Act, 1920. Therefore, Section 4 & 5 of the Identification of Prisoners Act, 1920 will not apply to a handwriting sample or a sample signature. Thus, an investigation officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence.
(II) Prior to June 23, 2006, when Act No. 25 of 2005 was notified, inter alia, inserting Section 311A in the Code of Criminal Procedure, 1973, even a Magistrate could not direct a person accused to give specimen signatures or hand writing samples. In cases where Magistrates have directed so, the evidence was held to be inadmissible as per the decision of the Supreme Court in Ram Babu Mishra's case (supra).
According to Section 73 of the Indian Evidence Act, 1972, only the Court concerned can direct a person appearing before it to submit samples of his handwriting and/or signature for purposes of comparison."
9.4. The issue regarding handwriting and signatures specimen was recently dealt with by our Hon'ble High Court in Rekha Sharma & ors Vs. CBI [2015 (218) DLT 1]. The court has observed that investigating officer in a criminal case is empowered under Section 2(h) Cr.P.C. to collect evidence and undertake various steps in that endeavor. The Supreme Court in Selvi V. State of Karnataka [(2010) 7 SCC 263] has endorsed this view and held that term "investigation" includes steps which are not exhaustively and expressly enumerated. Even otherwise, experience suggests that every crime requires its own tailor made investigation which may be peculiar to the circumstances of the case. It would not be prudent and neither possible to exhaustively catalogue such steps taken CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 54 of 91 during investigation. Thus, absence of a specific provision enabling a particular step under investigation does no imply that the investigation agency is disabled from taking that step under its power/duty to conduct investigation. The relevant para 448 and 449 are as follows:-
"448. The decision in Sapan Haldar (supra) again has considered the question whether handwriting and signature specimens are obtainable under Section 4 & 5 of the Identification of Prisoners Act, 1920 and the Court observed that since both handwriting and signature of a person are not a mark of identification, the same cannot be 'measurement' as defined under Section 2(a) of the Identification of Prisoners Act. However, the very next line which declares that an investigation officer, during investigation, cannot obtain a handwriting sample or a signature sample from a person accused of having committed an offence is in teeth with the view adopted by the Supreme court in Navjot Sandhu (supra)* [(2005) 11 SCC 600] and Dara Singh (supra)* [(2011) 2 SCC 490].
449. In view of the aforesaid discussion, I am of the opinion that the report of the expert and analysis of handwriting and signature specimens of the accused persons cannot be rendered inadmissible on the ground that it was obtained in violation of prescribed procure."
9.5. In view of the aforesaid observation, the contention raised by Ld. counsels for the accused persons that handwriting and signature specimen cannot be considered, is not sustainable.
9.6. PW-27 Sh. S.K. Saxena, Dy. Government Examiner of Questioned Documents, Govt. of India, Shimla has proved his two CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 55 of 91 opinions as Ex. PW 27/2 and Ex. PW 27/4. Which are as follows:-
"Ex. PW 27/2The documents of this case have been carefully and thoroughly examined.
2. The enclosed writings and signatures stamped and marked Q-1 to Q20, Q22, Q23A, Q24, Q26 to Q36 and S-1 to S22, S22A, A1 to A38 have been written by one and the same person.
3. The enclosed writings stamped and marked Q21, Q23, Q25 and S23 to S34 have been written by one and the same person.
4. The enclosed writings and signatures stamped and marked Q47 to Q52 and S54 to S70 have been written by one and the same person.
5. It has not been possible to express any opinion on rest of the items on the basis of material at hand. ""Ex. PW 27/4
Further documents of this case have been carefully and thoroughly examined.
2. The enclosed writings stamped and marked Q37/1, Q37/2, Q38/1, Q38/2, Q38/3, Q39/1, Q39/2, Q40/1, Q40/2, Q41/1, Q41/2, Q42/1, Q43/1, Q43/2, Q44/1, Q44/2, Q45, Q46 and S35 to S43, S76 to S106 have been written by one and the same person.
3.It has not been possible to express any definite opinion on the rest of the items."
9.7.To prove seizure of various questioned documents, admitted documents and specimen handwriting of the accused persons, prosecution has relied upon the statements of PW-6, PW 11 and PW 28. Vide production-cum-seizure memo Ex. PW 28/4, the main IO PW-28 has seized some documents including compliance of OBs relating to telephone no. 212459 and 216701. Vide seizure memo Ex. PW 28/5 IO PW 28 had seized compliance OBs of telephone numbers 219243 and CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 56 of 91 219285. Vide seizure memo Ex. PW 28/6, he had seized one jumper slip of telephone no. 218826, noting of general file/restriction/dynamic STD (7 pages), application of subscriber for Dynamic STD. Seizure memo Ex. PW 28/7, 28/8 and 28/9 are prepared by Inspt. Ved Prakash, who is reported to have died. The other attesting witness is Avdesh Kumar(PW-11), SDO(P), Nehru Ground Exchange but his testimony is silent in this regard. Vide these memos, some questioned documents were seized. Inspt. Ved Prakash having died, main IO PW 28 has proved these memos by deposing that he identify the handwriting and signatures of Inspt. Ved Prakash. It is not the situation that despite availability Inspt. Ved Prakash has not been produced but since he has died, due to this reason he could not appear before the court to depose about these memos. Prosecution is left with no other to prove these memos.
9.8.Ex. PW 6/A is the seizure memo also prepared by Inspt. Ved Prakash on 17.4.1995 vide which various admitted writings of A-2 were seized being produced by PW-6 Sh. Durg Pal Singh. PW-6 deposed that on 17.4.1995, he was posted as Sr. TOA, in the office of GM (Telephone), Faridabad. He identified his signatures on seizure memo Ex. PW 6/A and stated that vide this memo documents mentioned at serial no. 1 to 4 were seized which were taken by him to CBI office in sealed envelope.
9.9. Ex. PW 11/A is the seizure memo again in the hand of Inspt. Ved Parkash dated 5.4.1995 which is signed by PW-11 Avdesh Kumar as a witness to it. Vide this seizure memo, the original red copies of OBs of all the four phone numbers along with AE FRS copies were seized. PW-11 deposed that OBs Ex. PW 10/A and 10/C were seized by Inspt. Ved Prakash vide memo Ex. PW 11/A and the same bears his signature at CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 57 of 91 point "A".
9.10.Ld. counsel for A-2 has assailed the testimony of PW-6 and PW-11 by asserting that PW-11 was declared hostile by the prosecution and pointing out some irrelevant contradiction in their statement but in the considered opinion of this court, the various documents (questioned and admitted) pertaining to A-2 alleged to be containing handwriting of A-2 were validly seized during investigation in this case and there is no reason to disbelieve these seizure memos.
9.11.The opinion at serial no.2 of Ex. PW 27/2 is implicating A-2. It is relevant to mention here that Q-1 to Q-20 are comprising jumper letters book of the disputed telephone connections, slips addressed to SDO(P) against the OBs of these disputed telephone numbers, application addressed to commercial officer by the subscriber and importantly 4 affidavits of Vijay, Jagdish, Narender and Laxmi in support of their applications. The questioned documents of which opinion has been given by GEQD are pertaining to various documents prepared as per procedure as detailed by PW-22 regarding installation of these 4 telephone numbers at village Fatehpur Chandela, Faridabad and 5K/91 NIT Faridabad.
9.12.A-1 to A-32 (admitted handwriting of A-2) are stated to be containing handwriting and signatures of A-2, which he had done in discharge of his duties while dealing with other business in his office. It is important to mention here that A-25 and A-26 are applications submitted by A-2 for leave in the year 1985. A-27 to A-30 are two confidential reports for the year 1991-92 and 1992-93 of A-2 containing one note written by A-2 on both reports. A-31, A-32 are salary register of the year 1992-93 vide CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 58 of 91 which salary was disbursed to A-2 for the month of Oct. 1993 and Sept. 1993 and bears his signature on the revenue stamps.
9.13.It is relevant to mention here that as per GEQD report Ex PW 27/2 on the four affidavits (part of four applications) of unknown subscribers namely Vijay, Jagdish, Laxmi Kumar and Narender, even the signatures done by these unknown subscribers along with other handwriting on these documents are found to be in the handwriting of A-2.
9.14. The GEQD opinion Ex. PW 27/4 is regarding A-6. Various questioned documents in this opinion were seized vide seizure memo Ex. PW 5/A. PW-5 Sh. Bansi Lal independent witness who accompanied the main IO PW-28 while conducting search at Pant Nagar as well as Fateh Pur Chandela on 28.1.1994 has collectively exhibited these papers as Ex. PW 5/A. As pointed out by Ld. counsel for A-6 both PW-28 and PW-29 who conducted searches at Pant Nagar and Fateh Pur Chandela have claimed to have seized these documents which are Ex. PW 5/A. PW-28 has deposed that paper slips (D-33 to D-37) now pasted on white page sheet collectively Ex. PW 5/A have been recovered and seized by him during house search of A-1. On the other hand PW-29 during his cross- examination has stated that documents D-33 to D-36 (collectively Ex. PW 5/A) were seized by him from Fatehpur Chandela, Faridabad. He has specifically stated that he had not visited the house of A-1 at Delhi. In view of these contradictory statements of PW-28 and PW-29, I agree with the contention raised by Ld. counsel for A-6 that seizure of these documents have come under serious doubt and no reliance can be placed upon these documents. Hence, GEQD opinion Ex. PW 27/4 on the basis of these questioned documents with the specimen handwriting of A-6 is of CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 59 of 91 no consequence.
9.15.Summing up the GEQD reports Ex. PW 27/2 and Ex. PW 27/4, credible and clear evidence has come against A-2. The GEQD report Ex. PW 27/2 regrading PW-10 Ram Kumar, who was telephone mechanic will be discussed in the subsequent paras. The GEQD opinion Ex. PW 27/2 regarding "Rashmi", in view of the observations made in above paras, is of no consequence, hence, not discussed.
9.16.The other contention raised by Ld. counsel for A-1 & A-6 and A-2 is that law is settled that opinion evidence of handwriting expert cannot be taken as substantive evidence to hold conviction and the same should be substantially corroborated. In Magan Behari Lal (supra), the Apex Court has observed that it would be extremely hazardous to condemn the appellant merely on the strength of opinion evidence of a handwriting expert. It is now well settled that expert opinion must always be received with great caution and perhaps none so with more caution than the opinion of a handwriting expert. There is a profusion of precedential authority which holds that it is unsafe to base a conviction solely on expert opinion without substantial corroboration. In Ajit Singh (supra) court has observed that on mere opinion of handwriting expert conviction cannot be recorded. In Shashi Kumar (supra), court has observed that expert evidence as to handwriting is opinion evidence and it can rarely, if ever, take the place of substantive evidence. So far as acting on such evidence, it is usual to see if it is corroborated either by clear direct evidence or circumstantial evidence.
9.17.What legally substantiable evidence, prosecution has been able to establish on record, against each accused individually, as well as on the CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 60 of 91 angle of conspiracy amongst accused persons is being discussed in paras below, after discussing the other very contentious issues of sanction of prosecution of A-1 to A-4.
Sanction 10.0.Accused no. 1, 2, 3 & 4 were the Government employees and sanction for the is prosecution was given by PW-23 H. S. Sharma, Dy. General Manager (Administration), Northern Telecom Region, PW-24 R. C. Hooda Dy. General Manager, Department of Telecom (DOT), Faridabad and PW-25 Sh. B. M. Sharma, Divisional Engineer (Indoor), Okhla, MTNL, New Delhi respectively. Respective sanction orders of the accused persons were vehemently assailed by the Ld. defence counsels for each accused.
10.1.Out rightly, Ld. PP has submitted that sanction under Section 19(3) P. C. Act provides that no finding, sentence or order passed by the court shall be reversed or altered by the court in appeal on the ground of absence of, or any error, omission or irregularity in, the sanction required unless in the opinion of that court, a failure of justice has in fact been occasioned. It has been stated that to establish that mandatory sanction required under Section 19(1) P. C. Act was invalid or was not given by competent authority, accused is required to establish that because of the sanction order a failure of justice has occurred. On the other hand, Ld. counsels for the accused persons have contended that Section 19 of sub- section(3) is the power given to appellate court and no inference can be drawn by the trial court from this provision.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 61 of 9110.2.The other objection raised by Ld. PP to the opposition given by accused persons to their respective sanction orders, is that sanction order if defective should be challenged at the earliest and at the fag end of the trial, the objections raised by accused persons to sanction order, is of no consequence.
10.3.Section 19 PC Act runs as follows:-
"19. Previous sanction necessary for prosecution.-(1) No court shall take cognizance of an offence punishable under Sections 7, 10, 11, 13 and 15 alleged to have been committed by a public servant, except with the previous sanction [save as otherwise provided in the Lokpal and Lakayuktas Act, 2013] -
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of that Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not removable from his office save by or with the sanction of the State Government, of that Government;
(c) in the case of any other person, of the authority competent to remove him from his ofice.
(2) Where for any reason whatsoever any doubt arises as to whether the previous sanction as required under sub-section (1) should be given by the Central Government or the State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the [public servant from his office at the time when the offence was alleged to have been committed.
(3) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2 of 1974),-
(a) no finding, sentence or order passed by a CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 62 of 91 special judge shall be reversed or altered by a court in appeal, confirmation or revision on the ground of the absence of, or any error, omission or irregularity in, the sanction required under sub-section (1), unless in the opinion of that court, a failure of justice has in fact been occasioned thereby;
(b) no court shall stay the proceedings under this Act on the ground of any error, omission or irregularity in the sanction granted by the authority, unless it is satisfied that such error, omission or irregularity has resulted in a failure of justice;
(c) no court shall stay the proceedings under this Act on any other ground and no court shall exercise the powers of revision in relation to any interlocutory order passed in any inquiry, trial, appeal or other proceedings.
4. In determining under sub-section (3) whether the absence of, or any error, omission or irregularity in, such sanction has occasioned or resulted in a failure of justice the court shall have regard to the fact whether the objection could and should have been raised at any earlier stage in the proceedings. Explanation.- For the purpose of this section,-
(a) error includes competency of the authority to grant sanction;
(b) a sanction required for prosecution includes reference to any requirement that the prosecution shall be at the instance of a specified authority or with the sanction of a specified person or any requirement of a similar nature."
10.4.Sh. Harish Khanna, Ld. counsel for A-2 has relied upon the observations made by Apex Court in the recent judgment titled Nanjappa vs. State of Karnataka [Crl. Appeal No. 1867 of 2012 decided on 24.7.2015]. The Apex Court has exhaustively discussed the implication of Section 19(3) P. C. Act and has observed that sanction order can also be controverted at the fag end of the trial. The relevant para 16 & 17 are as CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 63 of 91 follows:-
"16. Having said that there are two aspects which we must immediately advert to. The first relates to the effect of sub-section (3) to Section 19, which starts with a non-obstante clause. Also relevant to the same aspect would be Section 465 Cr.P.C. which we have extracted earlier. It was argued on behalf of the State with considerable tenacity worthy of a better cause, that in terms of Section 19(3), any error, omission or irregularity in the order sanctioning prosecution of an accused was of no consequence so long as there was no failure of justice resulting from such error, omission or irregularity. It was contended that in terms of explanation to Section 4, "error includes competence of the authority to grant sanction."
The argument is on the face of it attractive but does not, in our opinion, stand closer scrutiny. A careful reading of sub-section (3) to Section 19 would show that the same interdicts reversal or alteration of any finding, sentence or order passed by a Special Judge, on the ground that the sanction order suffers from an error, omission or irregularity, unless of course the court before whom such finding, sentence or order is challenged in appeal or revision is of the opinion that a failure of justice has occurred by reason of such error, omission or irregularity. Sub-Section (3), in other words, simply forbids interference with an order passed by Special Judge in appeal, confirmation or revisional proceedings on the ground that the sanction is bad save and except, in cases where the the appellate or revisional court finds that failure of justice has occurred by such invalidity. What is noteworthy is that sub-
section (3) has no application to proceedings before the Special Jude, who is free to pass an order discharging the accused, if he is of the opinion that a valid order sanctioning prosecution of the accused had not been produced as required under Section 19(1). Sub-section(3), in our CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 64 of 91 opinion, postulates a prohibition against a higher court reversing an order passed by the Special Judge on the ground of any defect, omission or irregularity in the order of sanction. It does not forbid a Special Judge from passing an order at whatever stage of the proceedings holding that the prosecution is not maintainable for want of a valid order sanctioning the same. The language employed in sub-section (3) is, in our opinion, clear and umabiguous. This is, in our opinion, sufficiently, evident even from the language employed in sub-section (4) according to which the appellate or the revisional court shall, while examining whether the error, omission or irregularity in the sanction has occasioned in any failure of justice, have regard to the fact whether the objection could and should have been raised at any early stage. Suffice it to say, that a conjoint reading of sub-section 19(3) and (4) leaves no manner of doubt that the said provisions envisage a challenge to the validity of the order of sanction or the validity of the proceedings including finding, sentence or order passed by the Special Judge in appeal or revision before a higher Court and not before the Special Judge trying the accused. The rationale underlying the provision obviously is that if the trial has proceeded to conclusion and resulted in a finding or sentence, the same should not be lightly interfered with by the appellate or the revisional court simply because there was some omission, error or irregularity in the order sanctioning prosecution under Section 19(1).
Failure of justice is, what the appellate or revisional Court would in such cases look for. And while examining whether any such failure had indeed taken place, the Court concerned would also keep in mind whether the objection touching the error, omission or irregularity in the sanction could or should have been raised at an earlier stage or the proceedings meaning thereby whether the same could and should have been CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 65 of 91 raised at the trial stage instead of being urged in appeal or revision.
17. In the case at hand, the Special Court not only entertained the contention urged on behalf of the accused about the invalidity of the order of sanction but found that the authority issuing the said order was incompetent to grant sanction. The trial Court held that the authority who had issued the sanction was not competent to do so, a fact which has not been disputed before the High Court or before us. The only error which the trial Court, in our opinion, committed was that, having held the sanction to be invalid, it should have discharged the accused rather than recording an order of acquittal on the merit of the case. As observed by this court in Baij Nath Prasad Tripathi's case (supra), the absence of a sanction order implied that the court was not competent to take cognizance or try the accused. Resultantly, the trial by an incompetent Court was bound to be invalid and non-est in law."
10.5. PW 23 Sh. H. S. Sharma in the year 1996 was posted as Deputy General Manager (Administration), Northern Telecom Region, Kidwai Bhawan, New Delhi. He has proved sanction order Ex. PW 23/1 given by him for prosecution of A-1. He has deposed that he was competent to remove A-1 from service and at the time of granting the sanction, he had perused the material produced by CBI and after careful examination and after application of mind, he accorded sanction for prosecution. During his cross-examination by A-1 he has admitted that General Manager Southern Region would be sanctioning authority in resepct of employee posted in Southern Region. General Manager, Calcutta would be sanctioning authority in respect of Telecom employee posted in Calcutta. He deposed that he is aware of Rule 37 of Post & Telegraphs Manual.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 66 of 91Cadre of Phone Inspector is a cadre wherein a person can be transferred within the District or the Circle only and not to any part of India. He is not aware and cannot say if A-1 stood transferred to Calcutta or his name has been struck-off from KBN Division as well as MTNL with effect from 19.10.1993. He is not aware if A-1 has been ordered to report to General Manager, Calcutta and thereafter he remained posted in Calcutta till termination of his services.
10.6.Sh. M. P. Singh Ld. counsel for A-1 has deposed that A-1 had been transferred to Calcutta vide order dated 19.10.1993, he had been removed from the strength of MTNL and KBN Division and the sanction given by PW 23 being Dy. General Manager, Northern Telecome Region, Kidwai Bhawan, is totally invalid.
10.7.To establish his point accused has examined DW-8 Sh. Bihari Lal, who was posted as Divisional Engineer (Phones), KBN, Mohan Singh Place Exchange, MTNL, New Delhi during the year 1993. He marked the letter dated 19.10.1993 no. AMC/Staff/PI/92-93/106 issued by Sh. O. P. Dawar, the then Dy. General Manager (Central), MTNL, New Delhi. He deposed that this letter was endorsed to him. Original of this letter was shown to this witness from official record. As per this letter, he was directed to struck-off from the strength of AM(C) as well as MTNL the name of A-1 with immediate effect on 19.10.1993 itself as A-1 was directed to report to GM Calcutta (Telephones). Accordingly, be issued letter dated 19.10.1993, copy of which is Ex. DW 8/B (original of this letter was shown to him being produced by the department). He identified his signatures on this letter. As per this letter, he had struck-off the name of A-1 on 19.10.1993 with immediate effect from KNB Division as well as CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 67 of 91 MTNL Delhi. He categorically deposed that after this A-1 ceased to be on the strength of MTNL Delhi and KBN Division as well. After this, sanctioning authority/removing authority of A-1 was General Manager Calcutta for all purposes as he was under control of General Manager Calcutta. This witness was cross-examined by PP CBI but nothing has come on record to discredit his testimony. From the letters mark DW 8/A and DW 8/B (original of which were produced by the department), it is crystal clear that name of A-1 who was working as Phone Inspector was struck-off from the strength of AM(C), MTNL New Delhi, with effect from 19.10.1993 directing him to report to General Manager Calcutta for duties. DW-9 Shiv Singh, Assistant General Manager (Central) MTNL, CGO Complex has also supported the statement of DW-8. He has also categorically deposed that after strucking off the name of A-1 his disciplinary authority was General Manager Calcutta.
10.8.Ld. PP has submitted that A-1 was involved in this conspiracy to cheat the department in his individual capacity and not as an inspector of MTNL and sanction for his prosecution was not at all required.
10.9. I agree with the contention raised by Ld. PP that in the entire case there is absolutely no allegation against A-1 if while working as public servant has abused his position in obtaining for himself or for any other person any valuable thing or pecuniary advantage. Therefore, the substantive charge under Section 13(2) read with Section 13(1)(d) P. C. Act fails against him.
10.10. Sh. Harish Khanna, Ld. counsel for A-2 has submitted that A-2 was CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 68 of 91 permanent employee of MTNL Delhi but his sanction for prosecution was given by PW-24. The same is defective and not as per requirement of Section 19 P. C. Act.
10.11.PW 24 Sh. R. C. Hooda was posted as Dy. General Manager Department of Telecom (DOT), Faridabad in the year 1996. He proved the sanction order Ex. PW 24/1 for prosecution of A-2, then JTO. He deposed that he was competent authority to remove him from service. CBI supplied him copy of FIR, statement of witnesses etc. requesting for grant of sanction for prosecution of A-2. He studied the said material and after applying his mind, he had granted sanction for prosecution of A-2. During his cross-examination he admitted that A-2 was appointed as JTO by DGM, Delhi Telephones in the year 1978 and at that time area falling within the jurisdiction of Faridabad (Urban) Delhi and Ghaziabad were being catered by Delhi Telephones. Mahanagar Telephone Nigam Ltd. (MTNL) was formed in the year 1986 for Delhi. He does not know if A-2 is still drawing pension from MTNL Delhi. He does not know if arrears of A-2 were paid by MTNL Delhi. A-2 was suspended by him in the year 1994 in connection to allegations of this case. He cannot say without seeing the record whether as per letter dated 16.5.1994 of General Manager (Telecom) District Faridabad, the unit of posting of A-2 was shown as MTNL, New Delhi. He has no knowledge if Central Administrative Tribunal vide its order dated 13.9.2001 had ordered CGNT, Ambala to relieve A-2 immediately to enable him to joint MTNL New Delhi. He admitted that MTNL and BSNL are two different Government of India undertakings and are working under the control of Department of Telecommunications which is one of the department under Ministry of Communication & Information Technology. Both these departments are CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 69 of 91 headed by Chairman cum Managing Director wherein Department of Telecommunications (DOT), Secretary is the bureaucratic head. A-2 continued to work in Faridabad as employee of DOT in Delhi Telephones. He admitted that Govt. of India, Ministry of Communication, Department of Telecommunication, New Delhi had issued a circular dated 25.2.1986 directing that all the employees of DOT who were posted in Faridabad would be deemed to have been transferred on deputation to the concerned circle w.e.f. 1..4.1986 without payment of deputation allowance. In case a person is on deputation, it is the competent authority of the department where he is working which can remove him from service and not the parent department of the person concerned.
10.12.To support his contention, Ld. counsel for A-2 has relied upon S.K. Bhatia (supra) where the court has observed that petitioner (Govt. Servant) joined another department on transfer by way of deputation, Superintending Engineer losses his authority to remove or appoint Jr. Engineer whatever post or status he may be holding in borrowing department. The appropriate authority to remove the petitioner was Superintending Engineer of the parents department and not the borrowing department. Accordingly, sanction was declared invalid and no sanction in the eyes of law. The court has further observed that deputation by no stretch of imagination can be termed as absorption in the borrowing department. Same is the observation made by the Apex Court in State of Uttrakhand Vs. Yogendra Nath Arora (Supra). In R. R. Chari (supra) the petitioner was public servant of Assam Government loaned to Central Government. The sanction granted by Central Government for prosecution was held to be invalid and of no avail observing that sanction for prosecution of the Government Servant could CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 70 of 91 have been granted by Assam Government in whose permanent employment, the appellant was. In Khemi Ram (supra), Apex court has observed that the appellant though on deputation to another State would be governed by service rules of parent department. He could, therefore, be suspended by parent State while serving his transferee State.
10.13.To support his contentions, A-2 has examined DW-1 Sh. Rajesh Narain, Assistant Director (RTI), office of Chief General Manager, Northern Telecom Region (NTR), BSNL, Kidwai Bhawan, Delhi. He proved various letters provided by him on the information sought by A-2 under RTI as Ex. DW 1/1 to 1/15. DW-2 Ashok Kumar Gupta, AGM (Administration) HQ, Khursheed Lal Bhawan, New Delhi produced and exhibited various letters Ex. DW 2/1 to 2/6. DW-3 Hardayal Varshney, Vigilance Officer, MTNL, Khursheed Lal Bhawan, New Delhi also produced the summoned record and exhibited letters Ex. DW 3/1 to 3/7. DW-4 Harish Rautela, Accounts Officer (Cash) Wireless Services, MTNL, CGO Complex, New Delhi also produced summoned record and exhibited documents Ex. DW 4/1 to 4/3. Similarly, DW-5 R.C.Ahuja, Under Secretary, Department of Telecommunications, Sanchar Bhawan exhibited RTI replies and documents provided by him as Ex. DW 5/1 to 5/11. He deposed that A-2 was on deemed deputation to MTNL. In the year 1986 when MTNL came into existence and he was finally absorbed in MTNL. DW-6 is A-2 himself. He examined himself (by moving application under Section 315 Cr.P.C.). He filed certified copy Ex. DW 6/1, i.e. order dated 13.9.2001 passed by Central Administrative Tribunal, Principal Bench, Delhi in case titled Jitender Kumar Vs. Union of India & ors. DW-7 Suman Jain, AO Pension Cell, MTNL Eastern Court New Delhi produced service record of A-2. She proved various pages of his CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 71 of 91 service book as Ex. DW 7/1 to 7/9.
10.14.The scrutiny of various documents proved on record by A-2 reveals that on 24.5.1978, A-2 who was recruited as mechanic, was promoted as JTO. The entry in this regard is made in his service book at page Ex. DW 7/4. Vide Ex. DW 2/2, memo dated 27.12.1985 issued by Assistant General Manager (Admn.), he was transferred to Bahadurgarh as at that time Faridabad used to come under jurisdiction of Delhi Telecommunications. The corresponding entry in his service book is Ex. DW 7/5. Thereafter vide circular of DOT, MTNL came into existence w.e.f. 1.4.1986. Copy of which is Ex. DW 5/2 dated 25.2.1986 of Government of India, Ministry of Communications. As per which the area belonging to the State of Haryana which is at present form part of Delhi Telephone District will be transferred to the NW Circle. The staff in existing jurisdiction of two telephone districts being transferred to UP, NW and Maharashtra circle will be deemed to have been transferred on deputation to the concerned circles without deputation allowance. Once the corporation commences its operations, the cadre controlling authority for all staff recruited by Delhi District till final transfer to/absorption by corporation/NW Circle/UP Cricle will by GMM New Delhi and GM Telecom Maharshtra respectively. Even after final absorption of the staff by the corporation or transfer to NW circle, UP Cirlce, Maharashtra circle, cadre controlling officer for all non-gazetted residual DOT staff working in the area under the jurisdiction of corporation will continue to be GMM, New Delhi and GM Telecom. Bombay.
10.15.Ex. DW 2/3 is the gradation list of JTOs issued by Department of Telecommunication wherein A-2 is shown at serial no. 480. This CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 72 of 91 document establishes that though serving in Faridabad under North West Circle, he was still employee of Delhi Telecommunications and it was due to this reason, his name figured in gradation list. After registration of this FIR on 24.1.1994 vide letter Ex. DW 7/10 dated 16.2.1994 from the office of Dy. General Manager, Faridabad, he was put under suspension w.e.f. 25.1.1994. On the other hand vide letter Ex. DW 5/6 dated 8.9.1994, A-2 along with 40 other JTOs was promoted to the grade of Sub Divisional Engineer.
10.16.As per various documents proved on record by A-2 after giving sanction for his prosecution on 10.12.1996, letter Ex. PW 24/X was written by Joginder Paul, Assistant General Manager (Admn.) office of Chief General Manager, Haryana Telephone Circle, Ambala mentioning that as per their office record A-2 whose prosecution sanction was issued does not belong to this circle and he is on deputation from other circle/MTNL New Delhi. It is also mentioned that official is on deputation, it may be intimated as to why he has not been sent to parent circle when there is no shortage of JTOs there. Ex. PW 24/DX1 is another internal communication which took place in December 96 and January 97 mentioning that repartition of A-2 to his parent department was not possible as he was suspended by DGM Faridabad. Vide letter Ex. PW 24/DX8 dated 20.3.1997 issued by Sub Divisional Engineer office of GMT Faridabad, A-2 mentioned as Jitender Kumar, JTO MTNL New Delhi (under suspension) previously working under DE Phones West Nehruground Faridabad was repatriated to MTNL, New Delhi. The MTNL refused to take back A-2 on duty and wrote a letter Ex. DW 2/4 to Faridabad mentioning that he cannot be taken on duty till his suspension is revoked and disciplinary action is settled at Faridabad. Thereafter, on CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 73 of 91 25.11.1999 vide letter Ex. PW 24/DX-10 suspension of A-2 was revoked by Chief General Manager Telecom., Haryana Circle, Ambala and he was transferred from Faridabad to Rewari. In this transfer order also A-2 is mentioned as JTO (MTNL). In the background of these circumstances, A-2 filed petition in Central Administrative Tribunal Principal Bench, New Delhi. Vide order Ex. DW 6/1, Chief General Manager, MTNL, Chief General Manager, NTR Maintenance Region, Kidwai Bhawan, were directed to consider the representation of A-2 regarding his repatriation to his parents department namely MTNL. In compliance of this order vide letter DW 2/5 on 3.12.2001, A-2 being relieved by TDM Narnaul, Rewari was posted under GM(Planning) for CDMA with MTNL.
10.17.From the aforesaid discussion, it stands establish that MTNL New Delhi was parent department of A-2 and he was on deputation with Northwest Circle Faridabad while being posted at Faridabad. Hence, sanction Ex. PW 24/1 given for prosecution is declared invalid. Accordingly, in view of Section 19 P. C. Act, he cannot be prosecuted for the office as provided under Section 13(2) read with Section 13(1)(d) P. C. Act.
10.18. A-3 and A-4 have also challenged the validity of sanction given by PW-25 for their prosecution. PW-25 B. M. Sharma, who was posted as SDO (Phones) II, Telephone Change, Nehru Ground, Faridabad in the year 1996 has proved the sanction Ex. PW 25/1 granted for prosecution of A-3 who was working as lineman and sanction Ex. PW 25/2 for prosecution of A-4 who was working as regular mazdoor, both at Nehru Ground Faridabad. He deposed that he was competent to remove A-3 and A-4 in view of the circulars of the Department of Telecommunications CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 74 of 91 which, inter-alia, used to provide disciplinary authorities, appellate authority, removing authority etc. for various cadres of employees. Before granting of sanction for prosecution A-3 and A-4 he had gone through the material sent by CBI which included FIR, documents, statements etc. and after applying his mind he has accorded sanction for prosecution against them. During his cross-examination he has stated that none of the circular referred to in his examination in chief is available on judicial record which would show that he was competent to remove A-3 and A-4 from service.
10.19.The sole contention raised by A-3 &A-4 is that since these circulars have not been produced by sanctioning authority before the court on this very ground sanction order be held invalid. I find no force in this contention as otherwise statement of PW-25 is clear and specific that he had gone through the material sent by CBI before granting sanction.
CONCLUSION 11.0.In the back drop of evidence discussed before and the findings given by this court, the evidence which has come against each accused is briefly summed up as follows:-
B.S. Meena (A-1) 11.1. The case of the prosecution is that he was working as telephone inspector and living at house no. 14/7, Pant Nagar having telephone no. 4693959. Allegations against him are that he was kingpin of this racket and acting under conspiracy at premises Village Fatehpur Chandela, Faridabad, two telephone nos. 219243 and 218285 were installed on fictitious names and at premises no. 12/19, Sarvpriya Vihar telephone no. 653066 was used for running this illegal racket; A-6 was CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 75 of 91 operating under conspiracy from village Fatehpur Chandela and A-5 was operating from 12/19, Sarvpriya Vihar; A-2 being JTO in conspiracy with A-3 lineman and A-4 regular mazdoor, all posted at Nehru Ground Exchange and in conspiracy with other accused persons got installed the said 4 telephone connections, 2 at premises at village Fatehpur Chandela and 2 at 5K/91 NIT Faridabad; A-7 and other persons used to make STD/ISD calls in conspiracy with these accused persons and accordingly, total loss of Rs, 15,15,814/- was caused to MTNL.
11.2. Ex. PW 4/D is the observation-cum-seizure memo prepared by main IO PW-28 during search of residence of A-1, i.e. 14/7, Pant Nagar, Jangpura Extension. Some documents and cash of Rs. 1,06,820/- was recovered from there. The documents seized from this premises were not sent for handwriting comparison with the specimen or admitted handwriting of A-1 for opinion of the expert. Caller Navin, Rashmi who are alleged to have called A-1 during this search seeking to connect them at STD/ISD number were not examined. PW-4 and PW-5, independent witnesses joined during search have not supported the prosecution on material aspects of the search except identifying the signatures on the seizure memos and other documents.
11.3. Ex. PW-4/F is the observation-cum-recovery memo proved against A-1, as per which on 27.1.1994, CBI team led by PW-28 K.S. Joshi entered the premises Exceptional Manufacturers & Exports at B 62/13, Naraina Industrial Area. Even PW-4 and one Raj Singh were found in the office of Rashmi, coordinator of the said firm. PW-4 informed that A-1 had demanded payment of remaining amount from Rashmi Batra for international calls made by her to Saudi Arabia.CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 76 of 91
Rashmi Batra took out the record of the international calls made by her from one Salim through telephone no. 4693959. She produced the register in this regard containing details of the calls made by her from 5.1.1994 to 20.1.1994.
11.4. As already discussed Ms. Rashmi Batra was not examined as a witness in this case. PW-4 who was independent witness has again not supported the prosecution on material and relevant aspect of this observation-cum-recovery memo. PW-4 has specifically denied that Rashmi had identified A-1 as Salim to whom she used to make calls.
11.5.Ex. PW 13/A is the observation-cum-seizure memo dated 8.2.1994 prepared by IO PW-28 during the search of the premises 5K/91, NIT Faridabad. As per prosecution case Sandeep Khanna and his father Narayan Dass Khanna disclosed that one person namely Ramesh Kapoor was residing in the front room as a tenant. As per prosecution case, A-1 had introduced him as Ramesh Kapoor. Sandeep Khanna and his father Narayan Dass Khanna were not examined as witness. Prosecution case fails on this count also.
11.6. The 3 disclosure statements Ex. PW 4/H, 4/J and 4/K stated to have been made by A-1 on 28.1.194 are mere self implicating statements. Prosecution has failed to prove if on the basis of these disclosures any discovery of fact was made. Hence, these disclosure statements are hit by Section 27 Indian Evidence Act. A-6 is stated to be brother of A-1, as per prosecution case he was apprehended from the premises at village Fatehpur Chandela, Faridabad where 2 telephone nos. 219243 and 219285 were installed. As discussed before prosecution has failed to CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 77 of 91 prove any link between A-1 and A-6 as far as allegation regarding this conspiracy is concerned. As already discussed, there is absolutely no evidence on record to establish if A-1 used to call A-6 on telephones installed at village Fatehpur Chandela directing A-6 to connect STD/ISD calls for different customers. No call details of these numbers and the bills generated against these telephone numbers installed at village Fatehpur Chandela were proved on record.
11.7. The factum of recovery of Rs. 1,06,830/- during the house search of A-1 in itself is not sufficient to infer the ingredients of criminal conspiracy amongst various accused persons and this amount being booty collected from various customers. Accordingly, all charges against him fail.
Jitender Kumar Arora (A-2) 11.8. To prove that A-2 was posted as JTO at Nehru Ground Telephone Exchange, Faridabad, prosecution has examined witnesses. PW-11 Avdesh Kumar in the year 1993-94 was posted as SDO, Telephone Exchange, Nehru Ground, Faridabad. He deposed that OBs are received in the office from GMT Commercial Section, after making entry in the OB register it used to be sent to JTO concerned. As per rules, the duty of JTO is to verify the address written in the OB and the JTO prepare jumper letter and issue material for the purpose of instillation of telephone number under his signatures and then send the same to him for his signatures. He has identified his signatures and signatures of A-2 on OBs Ex. PW 10/A, 10/B and 10/C respectively, which were seized vide memo Ex. PW 11/A by Inspt. Ved Prakash. He further deposed that he had seen A-2 writing and signing during ordinary course of business as A-2 had worked with him at the relevant time. PW-14 Jai Prakash Bhadwaj was CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 78 of 91 posted as TOA in the office of SDO(P) Nehru Ground Exchange, Faridabad in the year 1995. He deposed about the detailed procedure regarding issuance of OBs. He deposed that after processing, SDO give the OB to JE. JE is also known as JTO. The JTO on the basis of OB will install telephone. He identified A-2 as he was working in the office of SDO(P) Nehru Ground, Faridabad. A-2 used to collect OB from SDO and go for installation of telephone. PW-16 D. C. Mishra in September 1992 was posted as Phone Inspector at Nehru Ground Exchange, Faridabad. He deposed that no JTO was posted with him. He was in charge of repair shop. The duty of the JTO is to execute the Order Book with the assistance of line man. He identified A-2 and stated that he was posted as JTO casually. During cross by PP CBI, he admitted that he was posted in Nehru Ground Telephone Exchange, Faridabad. These witnesses were cross-examined at length by A-2 and other accused persons but nothing has come on record to shatter their credibility. From the statement of these witnesses, it stands established that during the relevant period when files Ex. PW 22/1, Ex. PW 22/5, Ex. PW 22/9 and Ex. PW 22/12 were dealt with by PW-22 Edal Singh being DE (Administration) in the office of General Manager, Telecom, Faridabad, A-2 was posted at Nehru Ground Telephone Exchange as JTO and he was mainly responsible to verify the address of the subscriber of new telephone connection mentioned in the OB and take steps for installation of new telephone connection at the given address, as per application of the subscriber.
11.9.The sanction for prosecution of A-2 Ex. PW 24/1 has been held invalid . Prosecution is also held to have failed to prove the conspiracy amongst accused persons. Prosecution has also failed to examine any caller who used to make STD/ISD calls at cheaper rates under this CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 79 of 91 conspiracy except A-7(as per prosecution case) who has been made an accused in this case. The alleged loss of Rs. 15,15,814/- suffered by MTNL by running of racket of making telephone calls illegally also remained unproved.
11.10. However, prosecution has been able to prove beyond reasonable doubt that various affidavits on the name of unknown subscribers accompanying the applications Ex. PW 22/1, PW 22/5, PW 22/9 and PW 22/12 were prepared by A-2 in his own hand and even he has signed names of these unknown subscribers. Even the applications Ex. PW 22/2, PW 22/6, PW 22/10 and PW 22/13 of these 4 telephone nos. 212459, 216701, 219243 and 219285 are found to be in the handwriting of this accused. PW-10 Ram Kumar Sharma in the year 1991-94 was working as regular mazdoor in the Commercial Office, GMT, Faridabad. He has proved Ex. PW 8/A to 8/C which were filled up by him in his own handwriting. He has deposed that the address given in Ex. PW 10/B, PW 10/C of village Fatehpur Chandela is not in his handwriting, when he filled up documents Ex. PW 10/A to PW 10/C. These were not bearing the address written on it at point "A" respectively. Ex. PW 10/A to C are the OBs of telephone nos. 212459, 219285 and 219243 respectively. Addresses mentioned on these documents has been changed as 5K/91, NIT Faridabad, Fatehpur Chandela and Fatehpur Chandela respectively. As per GEQD report Ex. PW 27/2 contents of Ex.PW 10/A to C are in the handwriting of PW-10 and this change of address on Ex. PW 10/A to C is in the handwriting of A-2.
11.11.As per GEQD report Ex. PW 27/2, the questioned handwriting is matched with the specimen writing and admitted writing of A-2. Ld. CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 80 of 91 counsel for A-2 has strongly urged that the prosecution has failed to prove the specimen handwriting of A-2 and hence, the same cannot be considered for the purpose of GEQD opinion. Here it is relevant to mention that GEDQ has also compared the questioned writing with the Admitted writing of A-2 seized during investigation. It is further relevant to mention here that admitted writing of A-2 comprise his application for leave, his confidential report, his signatures on salary register in addition to other documents prepared by him in routine discharge of his duties as JTO. No scope is left to doubt the GEQD opinion.
11.12.One of the contentions of Ld. counsel for accused is that opinion of handwriting expert cannot be taken as substantive evidence to return the findings of conviction, the same should be suitably corroborated by other evidence. In view of the judgments relied upon by Ld. counsel for accused, I agree with the contention that there should be corroborative evidence to the opinion of handwriting expert, only then the opinion of the handwriting expert can be considered. Here in this case, PW-11, PW-14 and PW-16, who are officers and were posted at Nehru Ground Telephone Exchange, Faridabad, at the relevant time, in different capacities have categorically asserted that A-2 was working as JTO and after sanction of telephone connection, OB used to be sent to A-2 and being JTO, he used to verify the address, prepare jumper letter and issue material for purposes of installation of telephone number under his signatures. Hence, GEQD opinion Ex. PW 27/2, as discussed earlier, is not the only evidence against A-2 but same is corroborated with the statements of various officers of Nehru Ground Telephone Exchange, Faridabad regarding the aspect that A-2 being JTO was officer responsible for installation of the telephone connection after verifying the CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 81 of 91 address at the address mentioned in the application.
11.13.Prosecution having failed to establish allegations of conspiracy amongst accused persons including A-2, other charges which remains against this accused are of substantive offences under Section 468, 471 IPC and under Section 13(2) read with Section 13(1)(d) P. C. Act. Due to lack of proper sanction, charge under Section 13(2) read with Section 13(1)(d) P. C. Act also fails.
11.14.Cheating, making a false document and forgery for purpose of cheating have been defined under Sections 415, 464 and 468 respectively which are as follows:-
415. 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".
Explanation.- A dishonest concealment of facts is a deception within the meaning of this section.
464. Making a false document. - A person is said to make a false document or false electronic record- First- Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or transmits any electronic record or part of any electronic record;
(c) affixes any electronic signature on any electronic record;
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 82 of 91(d) makes any mark denoting the execution of a document or the authenticity of the electronic signature, with the intention of causing it to be believed that such document or part of document, electronic record or electronic signature was made, signed, sealed executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly- Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with electronic signature either by himself or by any other person, whether such person be living or dead at the time of such alternation; or Thirdly- Who dishonestly or fraudulently causes any person to sign, seal execute or alter a document or an electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practised upon him, he does not know the contents of the document or electronic record or the nature of the alteration.
468.- Forgery for purpose of cheating.- Whoever commits forgery, intending that the document or electric record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.
11.15. Though accused has not been charged for the substantive offence of cheating under Section 420 IPC but evidence which has come on record against him proves beyond doubt that he had cheated the telephone department by wrongly inducing it to sanction telephone connections under the special category reserved for professionals like CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 83 of 91 advocates, doctors, chartered accountants and owners of small scale industries etc. As already discussed, the applicants of these four telephone connections could not be traced at the given addresses and the certificates to show that they are professionals and falling in the special category are found adduced with the applicants.
11.16. Forgery is defined under Section 463 which runs as follows:-
"
463. Forgery.- Whoever makes any false documents or false electronic record or part of a document or electronic record, with intend to cause damage or injury, to the public or to any person, or to suppo0rt any claim or title, or to cause any person to part with property or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."
11.17. From the evidence on record there is clear and consistent proof that this accused has forged application forms of these telephone connections by filing affidavits supporting these applications signed by him on the names of the unknown subscribers.Therefore, it is held that prosecution has been able to prove beyond reasonable doubt that this accused has committed offences punishable under Sections468/471 IPC.
Ram Nath Singh (A-3) & Khazan Singh (A-4) 11.18. There is absolutely no evidence on record to establish that both these accused were posted at Nehru Ground Telephone Exchange, Faridabad and in any manner responsible for applying, sanction and installation of these four telephone connections on the basis of forged documents. Accordingly, charges against them also remain unproved.
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 84 of 91Balbir Singh (A-5) 11.19 The only evidence which the prosecution has been able to prove against this accused is search memo Ex. PW 2/A. Independent witnesses, i.e. PW-2 and PW-3 have not supported the prosecution on the substantial aspect of this memo. The landlady Ms. Lita Gidwani of the said house could not be examined by the prosecution. The other customers who as per this memo came there to make international calls were also not examined. Prosecution has further failed to establish on record any evidence linking this premises with the other two premises searched, i.e. at Pant Nagar and village Fatehpur Chandela. Prosecution has also failed to establish if there existed any link amongst all accused persons or more specifically of this accused with A-2 who is held to have forged the documents.Therefore, prosecution is held to have failed to prove any charge against this accused.
Satender Kumar Meena (A-6) 11.20. The only evidence which prosecution has brought on record against this accused is search memo Ex. PW 7/X. The independent witness PW-7 has not supported the prosecution in any manner. PW-26 Kishori Lal, who is stated to be the landlord of the house has again turned hostile and has not supported the prosecution in any manner. The documents Ex. PW 5/A (D-33 to D-36) has also come under doubt as both PW-28 and PW-29 who were heading search team at 14/17 Pant Nagar and premises at village Fatehpur Chandela, Faridabad, have claimed to have seize these documents. The questioned documents as per GEDQ report Ex. PW 27/4 are documents which are Ex. PW 5/A. Hence, GEQD report Ex. PW 27/4 is of no consequence. Accordingly, CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 85 of 91 prosecution is held to have failed to prove any charge against this accused.
Preet Pal Singh (A-7) 11.21. The case of the prosecution is that A-7 was proprietor of M/ Exceptional Exports Knitting Garments and was having telephone nos. 5705463, 5705464 and 5705465. He in conspiracy with A-1 made large number of illegal ISD calls to Saudi Arabia, Germany, USA, and England since November, 1993 to 25th January, 1994. As per memo Ex. PW 4/A prepared by main IO PW-28, Ms. Rashmi had called A-1 on telephone no. 4693959 installed at his premises from telephone no. 5705465 and 5705565 of Naraina Industrial Area but neither Rashmi was examined as a witness nor any evidence has come on record to prove that these telephones were installed at Naraina Industrial area and at any point of time call was made from these numbers at the telephone number installed at house of A-1. Even as per observation-cum-recovery memo Ex. PW 4/F when CBI team visited the premises of M/s Exceptional Exports at 2nd floor B-62/13, Naraina Industrial Area, Phase-I, stated to be the office of A-7, there is only mention of presence of Ms. Rashmi over there. Accordingly, prosecution is held to have failed to prove any charge against this accused.
11.22.One of the main allegations against all the accused persons is of conspiracy. But there is absolutely no evidence from which it could be inferred that at any point of time on or before 25.1.1994 accused persons entered into a criminal conspiracy with each other to make cheaper STD/ISD calls from 4 telephone numbers installed at Faridabad to cause CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 86 of 91 financial loss to the telephone department. The law on conspiracy has already been discussed in detail. Accordingly, it is held that prosecution has failed to prove this allegation of conspiracy against all the accused persons.
11.23.In view of the aforesaid discussions, it is held as follows:-
(a) A-2 Jitender Kumar Arora is held guilty and convicted for offences under Sections 468/471 IPC only. Prosecution has failed to prove the remaining offences with which he has been charged. Accordingly, he is acquitted from the remaining offences.
(b) All the remaining accused, namely, accused no.1 B. S. Meena, accused no. 3 Ram Nath Singh, accused no. 4 Khazan Singh, accused no.5 Balbir Singh, accused no. 6 Satender Kumar Meena and accused no.
7 Preetpal Singh are acquitted from the various offences with which they were charged.
11.24.Let convict Jitender Kumar Arora be heard on the point of sentence on 19.11.2015. Remaining accused are directed to submit personal bond and surety bond in the sum of Rs. 15,000/- each as required under Section 437-A Cr.P.C.
Announced in open court (SANJAY GARG-I)
on 16th day of November, 2015 SPECIAL JUDGE-IV, CBI (PC Act)
TIS HAZARI COURTS,DELHI
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 87 of 91
IN THE COURT OF SANJAY GARG-I :
SPECIAL JUDGE-IV, (PC ACT) CBI: DELHI.
CC No. 31/2009
ID No. 02401R0183892001
Central Bureau of Investigation (CBI)
Versus Versus
1. B.S. Meena (Acquitted).
2. Jatinder Kumar Arora
S/o. Shri Notan Das Arora,
R/o. H. No. 2349, Sector -16,
Faridabad, Haryana. (Convict)
3. Ram Nath Singh(Acquitted).
4. Khazan Singh (Acquitted).
5. Balbir Singh (Acquitted).
6. Satender Kumar Meena (Acquitted).
7. Preetpal singh (Acquitted).
ORDER ON SENTENCE
1.Heard Shri Anil Tanwar, ld. PP for CBI & Sh. Harish Khanna, Ld. defence counsel for convict Jatinder Kumar Arora on the quantum of sentence.
2.Shri Harish Khanna, learned counsel for the convict Jatinder Kumar Arora submits that convict is 70 years of age, suffering from ailments and his wife is dependent upon him. It is stated that he has suffered CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 88 of 91 agony of trial for the last 20 years and he has not absented for single day during trial. It is stated that he is drawing pension from the department and if sentenced to any term of imprisonment, he may loose pensionary benefits. It is stated that he has remained behind bar for about 15 days at the stage of investigation. It is stated that while in service he has received various appreciation letters from his department for the services rendered by him, prior to this FIR and even subsequent to that. The Ld. counsel has filed copies of these appreciation letters. It is stated that keeping in view the age, antecedents of the convict and also keeping in view the fact that no monitory loss or gain was caused to any one, he deserves to be given benefit of Probation of Offenders Act. It is stated that since convict has not been held guilty for the offences under Prevention of Corruption Act, the bar of Section 18 of Probation of Offenders Act is not applicable in this case. The Ld. counsel for convict has relied upon the judgments in cases of Sita Ram Vs. State of Haryana [1994(1) C.C.Cases 176(HC)], State of Karnataka Vs. Muddappa [IV (1999) CCR 319(SC)] and Om Pal Vs. State of UT Chandigarh [2012 LawSuit (P&H) 4551].
3.The Ld. PP has submitted that keeping in view nature of offence, maximum punishment be provided which may reflect deterrence.
4.Perused the judgments relied upon by the convict. The facts of the present case are distinguishable from the facts of these cases. In the present case, convict was working as JTO in the telephone department of Government of India. The allegations proved against CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 89 of 91 him are that he has forged the documents whereby the department was dishonestly induced to sanction telephone connection. In these circumstances, it is not a fit case to be considered for the benefit of Probation of Offenders Act.
5.In Santa Singh Vs. State of Punjab, 1976 SCC(Crl) 546, the Hon'ble Apex Court held:
"A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances-extenuating or aggravating-of the offence, the prior criminal record, if any, of the offender, his age and educational background, his record as to employment, home lief, sobriety and social adjustment, his emotional and mental condition, the prospects for his rehabilitation and return to normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrence in respect of the particular type of offence. These are factors will have to be taken into account by the court in deciding upon the appropriate sentence.
6. The age of the convict, he being first offender, his clean antecedents and the protracted trial last for 20 years faced by him are the mitigating factors to be kept in mind while awarding the sentence.
7.Accordingly, keeping in view all the facts and circumstances convict Jatinder Kumar Arora is sentenced as follows:
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 90 of 91(I) Rigorous imprisonment for one year and fine of Rs.
10,000/-, in default of payment of fine to undergo simple imprisonment for two months for the offence punishable under Section 468 IPC ,
(ii) Rigorous imprisonment for one year and fine of Rs.10,000/-, in default of payment of fine to undergo simple imprisonment for two months for the offence punishable under Section 471 IPC.
8.Both the sentences to run concurrently. Benefit of Section 428 Cr.P.C. be given to the convict.
9.A copy of the judgment and order on sentence be given to the convict.
10. File be consigned to record room.
Announced in open court (SANJAY GARG-I)
on 19th day of November, 2015 SPECIAL JUDGE-IV, CBI (PC Act)
TIS HAZARI COURTS,DELHI
CC No. 31/2009 CBI Vs. B. S. Meena & ors. Page 91 of 91