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2. The petitioner claims to be an ordinary director of the Intergroup C & E Ltd. ('ICE Ltd' for brevity) which was allotted six Integrated Services Digital Network telephone connection ('ISDN connections' for brevity) at their office premises E-380, Greater Kailash I, New Delhi in February, 2000 without STD/ISD dialing facility. On 3rd May, 2000, the Mahanagar Telephone Nigam Ltd. (MTNL for brevity) which was a service provider for these connections filed a criminal complaint before the Special Cell of the Delhi police alleging that the subscriber was misusing the telephone connection in violation of the provisions of the Indian Telegraph Act, 1885. The police raided the business premises of the company, arrested Sh. Sanjay Malviya, its managing director and Sh. Deepak Gupta, Technical Advisor and also seized all equipment attached with the telephone connection. A case bearing FIR No. 136/2000 was registered under section 420/120B of the Indian Penal Code read with Section 4/20 of the Indian Telegraph Act, 1885.

"In order to attract the provision of Section 406 IPC following ingredients have to be satisfied:- (i) that there was an entrustment of the property with the accused or the accused was having any dominion over the property, (ii) that the persons entrusetd (a) dishonestly, misappropriated or converted that property for his own use, (b) dishonestly uses or disposed off that property or willfully suffers any other person so to do in violation (i) of any direction of law prescribing the mode in which such trust is to be discharged (ii) of any legal contract made touching the discharge of such trust - (VIII (2001) SLT 439) S.C. In the facts and circumstances of the case, the accused persons cannot be said to have the dominion over the functioning of ISDN lines for their business purposes. The bandwidth of the ISDN lines cannot be altered by the accused persons and, therefore, the dominion over the ISDN lines, even after leasing of the said ISDN remains with the MTNL. Furthermore, the accused persons cannot be siad to have misused the ISDN lines as they were doing the business for which they have been sanctioned the ISDN lines on lease by the MTNL. Furthermore, there is no specific way of calculation of wrongful loss to the Govt. Of India as well as the wrongful gain to the accused. It is only stated that the ISDN lines were being used by the accused persons day and night and the ISDN lines were found busy at all times. Even the perido of causing losses to the Govt. of India is not specific and it has been mentioned vaguely as 2-3 months. Furthermore, there is no material on record which shows that the accused persons have entered into a conspiracy to cause the wrongful loss to the Govt. of India by their unlawful activities. In order to attract the provision of Section 120-B of IPC, there must exists some evidence in record to show the meeting of minds of the accused persons resulting in ultimate decision taken by them to commit the offence u/s 406/420 and Section 4 of the Indian Telegraph Act, 1885."