Delhi District Court
Central Bureau Of Investigation vs . (1) Gurmeet Singh, on 13 January, 2012
IN THE COURT OF SH. DINESH KUMAR SHARMA
SPECIAL JUDGE (PC ACT), CBI, SAKET COURTS, NEW DELHI
CC No. 50/11
Unique Case ID No. 02406R0061912000
Central Bureau of Investigation Vs. (1) Gurmeet Singh,
S/o Sh. Dilip Singh,
R/o 42A, Village Hauz Khas,
New Delhi.
(2) Anurag Garg,
S/o Sh. AS Garg,
R/o E240, Gali No.7,
East Vinod Nagar,
New Delhi.
(3) Irfan,
S/o Sh. Syed Ali,
R/o H.No. 306, Sita Ram
Bazar, Shanker Gali,
Turkman Gate, Delhi.
(4) Aneesuddin @ Pappu
S/o Sh. Raufuddin
R/o 456, Matia Mahal,
Jama Masjid,
Delhi.
(5) Rajesh Malhotra @ Raju,
(since discharged)
S/o Sh. Shanker Lal Malhotra,
CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 1 of 51
R/o 8333, Roshan Arah Road,
Delhi.
(6) Wasim Ahmed
S/o Sh. Jaffar Hussain,
R/o 1669, Uncha Dakni Rai,
Darya Ganj, Delhi.
7) Sh. Javed Masood Khan,
(since discharged)
S/o Sh. Mohd. Ismail Khan,
R/o Q11, DDA Flats,
Turkman Gate,
Delhi.
8) Mohd. Sabir (since expired)
S/o Sh. Shahabuddin,
R/o 2203, Turkman Gate,
Delhi.
9) Shakeel Ahmed
S/o Sh. Khaliq Ahmed,
R/o 8882, Naya Mohalla,
Pul Bangash, Delhi.
10) Parvez Ahmed
S/o Sh. Zaffar Hussain,
R/o 1669, Uncha Dakni Rai,
Darya Ganj, Delhi.
11) AK Jain
S/o Sh. PK Jain,
R/o 16C, Sanchar Lok
CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 2 of 51
Apartment, 108, IP Extn.,
Patparganj,
New Delhi.
12) OP Chaudhary,
S/o Harbans Singh,
R/o H.No. 1046, Sector 13,
Vasundhara, Ghaziabad, UP.
13) Vijay Kumar,
(since discharged)
S/o Sh. Amar Singh,
R/o 11/447, Sector 1,
Gole Market, New Delhi.
14) MP Singh,
S/o Late Sh. Sher Singh,
R/o 5/155, Mandoli Extn.,
Delhi.
RC No. : 13(A)/94 - DLI.
u/Ss : u/Ss 120B IPC r/w 418, 420 IPC &
Sec. 25 of Indian Telegraph Act and,
u/S 13(1) (d) r/w Sec. 13(2) PC Act and,
substantive offences u/S. 418, 420 IPC &
Sec. 25 Indian Telegraph Act and
u/S 13(2) r/w 13(1)(d) PC Act.
Date of Institution : 19.10.2000
Received by transfer on : 02.11.2011
Arguments Heard on : 13.01.2012
Date of Decision : 13.01.2012
CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 3 of 51
Appearances:
Sh. DK Singh, Ld. PP for CBI.
Sh. SP Ahluwalia, Sh. Puneet Ahluwalia and Sh. NC Jain, Ld. Counsels for
all the accused persons.
JUDGMENT
1.0 The criminal proceedings were instituted on the complaint dated 16/2/94 by Sh. APS Sachdeva, Asst. Engineer, MTNL. The complaint disclosed that MTNL had an information regarding functioning of a racket of providing international telephone calls at cheaper rates by tampering with instruments. The racket was being run by certain private persons in conspiracy / collusion with MTNL employees. On this RC No.13(A)/94DLI was lodged u/S.120B IPC r/w S. 418/420 IPC r/w S.13(2) r/w S.13(1)(d) of PC Act and S.25 of Indian Telegraph Act. Allegedly, the accused persons had procured 11 telephone connections bearing Nos. 3732486, 3747320, 3747011, 3746311, 3747044, 3745281, 312018, 310389, 310043, 312478 and 312168 at 40 Hanuman Lane, New Delhi. The telephones were installed in three different names. Allegedly, in collusion with MTNL employees, the meter, which used to record the calls made on said telephones were tampered with and were made inoperative. The modus operandi was that the accused persons used to offer STD / ISD facility at cheaper rates. The local telephone of the selected customers were used to be received on the six telephone Nos. CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 4 of 51 3732486, 3747320, 3747011, 3746311, 3747044 and 3745281 which were STD barred and the calls so received used to be put through with the help of conference facility with the help of ISD/STD enabled phone. The consumers were mainly businessmen having business operations abroad and the persons visiting from foreign countries particularly, Afghanistan, Pakistan and Gulf countries. On being suspicious, some of the STD phones were put on observation on 24/1/94 and two telephones were put on observation on 1/2/94. It was found that the calls were not being metered due to tampering. On this complaint, RC No. 13(A)/94DLI was lodged. During investigation, it transpired that accused Gurmeet Singh was operating from a garage at 40 Hanuman Lane from the year 1991 onwards. He was having 07 telephone Nos. 3746311, 3747044, 312168, 3747011, 345281, 310043 and 312478, out of which telephone Nos. 3747011, 345281, 310043 and 312478 were having STD/ISD facility. Accused Gurmeet Singh had purchased these telephones from different persons. Accused Anurag Garg came into contact with Gurmeet Singh and took the portion of garage at 40 Hanuman Lane on rent. At the rented portion, PCO No. 3747320 and 3732486 were installed. On 16/2/94, a raid was conducted at different places including 40, Hanuman Lane. During raid, it was found that telephone lines of ISD telephone No. 345281, 312478 and local telephone Nos. 3747011 and 3747044 were running in parallel lines from the portion of garage which was in occupation of accused Gurmeet Singh. The telephones were terminating at the telephone instrument having conference facility at top floor in a room owned by CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 5 of 51 accused Gurmeet Singh. The role of accused Mohd. Irfan, Wasim Ahmed, Aneesuddin and Parvez Ahmed also surfaced. It was revealed that accused Irfan misused telephone No. 345281 and 3747011 for providing illegal STD/ISD facility on telephone No. 2928290 in the name of Asha Gupta. The facility was also provided to Mohd. Fazil having telephone No. 3286512 and also to Hassan Khan and his brother Raza Khan at DilAAram Guest House. In the course of investigation, it was found that Gurmeet Singh had been illegally extending ISD facility to various persons including SK Agarwal, Ram Avtar, Kasim and Salim through conference facility. Gurmeet Singh had also been providing STD/ISD line on telephone Nos. 345281, 3747011, 310043 and 312478 and was charging substantial amount from accused Rajesh Malhotra (since discharged). The MTNL employees namely MP Singh, AK Jain, Vijay Kumar and OP Chaudhary were also part of the conspiracy. MP Singh who was posted as a technician at Dilshad Garden Extension at the relevant time misused his official position and got telephone No. 345281 having ISD facility inoperative through accused Vijay Kumar, JTO. Vijay Kumar was assured the sum of Rs.10,000/ per month against this act. The metering of telephone calls of 310043 and 312478 were also rendered ineffective. AK Jain was also won over against the illegal gratification for making meters ineffective. OP Chaudhary was also used as a conduit to ensure nonfunctioning of meter of telephone No. 312018 and 310389 through AK Jain against illegal gratification. CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 6 of 51 1.2 During the raid, the telephone diary was recovered from Anurag Garg which was having telephone No. which were found to be on the print out during Multi Level Observation Equipment for the period 22/1/94 to 24/1/94 and thereafter, from 11/2/94 to 15/2/94. During the raid on 16/2/94 the meter of telephone No. 345281, 312018 and 310389 were found to be inoperative and meter of telephone No. 310043 was found to have been soldered. The investigation disclosed that the telephone No. 312018, 312478, 310043, 312168, 310389 when put on Multi Level Observation Equipment by vigilance department of MTNL during the period 22/1/94 to 24/1/94 and from 11/1/94 to 15/2/94, these telephones had recorded 120387, 8964, 44664, 33 and 108705 calls respectively whereas Call Pattern Traffic Revenue register was showing that for the period from 27/11/93 to 14/2/94 only 1099, 3568, 1292, 1103 and 1176 telephone calls were made from telephone Nos. 312018, 312478, 310043, 312168 and 310389, respectively. CBI had chargesheeted against accused AK Jain primarily on the allegations that accused facilitated non functioning of meter of telephones in pursuance to the conspiracy and thus, cheated telephone department by causing huge financial loss. CBI had alleged that accused Gurmeet Singh was the kingpin and only because of his act and conduct, the accused persons could cause huge loss to MTNL. AK Jain was incharge of meter level 31 & 34 Kidwai Bhawan Exchange and during raid it was found that meter of telephone No. 312018, 310389, 345281 were not responding to pulse and meter of telephone No. 310043 were found working but it had fresh soldering mark. The meter CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 7 of 51 of level 31 was found installed in a room which was locked and key of the said room was found in possession of accused AK Jain. It was alleged that without permission of AK Jain, nobody could have entered the room and he was the sole custodian of the keys of the meter room and was responsible for happenings inside the room. CBI had found during the course of investigation that accused MP Singh used to visit Gurmeet Singh very frequently and PW Tarsem had also seen Gurmeet Singh paying Rs. 10,000/ to accused MP Singh. The case against accused Irfan and Wasim was also that they used to visit Gurmeet Singh after around 7pm with a list of telephone number and they used to dial a telephone number with the help of servant of Gurmeet Singh. Irfan had also contacted one Asha Gupta to provide facility for international calls. Asha Gupta had paid Irfan Rs.8,000/ for this facility. Accused Aneesuddin was found present in the room at the time of raid. He was also found in possession of a diary in which telephone number of various customers were found. Similarly, accused Wasim had also been allegedly, frequently visiting Gurmeet Singh. CBI has alleged that Shakil was having a telephone No. 7774316 in shop No.10094, Pul Bangash and he used to provide ISD facility at cheap rate to the occupants of guest house in Old Delhi area. During observation, it was found that abnormally large number of incoming and outgoing calls were made and without being metered. Accused Parvez was also found in the room where telephone Nos 3747011, 3747044, 312478 and 345281 were found installed.
After completion of investigation, chargesheet u/S 120B IPC r/w CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 8 of 51 418, 420 IPC and 13(1)(d) r/w 13(2) PC Act and Sec. 25 Telegraph Act was filed.
CHARGE 2.0 Being a prima facie case charge u/Ss.120B r/w 418, 420 IPC & Sec. 25 Indian Telegraph Act and u/S 13(1)(d) r/w 13(2) PC Act and substantive offences u/S 420 IPC & Sec. 25 Indian Telegraph Act was framed against accused Gurmeet Singh. Accused Anurag Garg was charged for the offence u/Ss. 120B r/w 418, 420 IPC & Sec. 25 Indian Telegraph Act and u/S 13(1)(d) r/w 13(2) PC Act and substantive offences u/S 420 IPC & Sec. 25 Indian Telegraph Act. Accused AK Jain was charged for the offence u/Ss.120B r/w 418, 420 IPC & Sec. 25 Indian Telegraph Act and u/S 13(1)(d) r/w 13(2) PC Act and substantive offences u/Ss 418, 420 IPC & Sec. 25 Indian Telegraph Act and also 13(2) r/w 13(1)(d) of PC Act. Accused MP Singh was charged for the offence u/Ss.120B r/w 418, 420 IPC & Sec. 25 Indian Telegraph Act and u/S 13(1)(d) r/w 13(2) PC Act and substantive offences u/Ss 418, 420 IPC & Sec. 25 Indian Telegraph Act and also u/Ss 13(2) r/w 13(1)(d) of PC Act. Accused Irfan, Aneesuddin, Wasim Ahmad, Shakeel Ahmad and Parvez Ahmed were charged for the offences u/Ss.120B r/w 418, 420 IPC & Sec. 25 Indian Telegraph Act and u/S 13(1)(d) r/w 13(2) PC Act and substantive offences u/Ss 418, 420 IPC & Sec. 25 Indian Telegraph Act. Accused OP Chaudhary was charged for the offence u/Ss. 120B r/w 418, 420 IPC & Sec. 25 Indian Telegraph Act and u/S 13(1)(d) r/w CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 9 of 51 13(2) PC Act and substantive offences u/Ss 418, 420 IPC & Sec. 25 Indian Telegraph Act and also u/S 13(2) r/w 13(1)(d) of PC Act. 2.1 Accused Rajesh Malhotra, Vijay Kumar and Javed Masood Khan were discharged for want of incriminating material on record vide order on charge dated 28/2/2011. CBI has not challenged the order of discharge.
Accused Mohd Sabir expired during the course of the proceedings.
2.2 The chargesheet in this case was filed on 19/10/2000 and this Court received the case by way of transfer on 02/11/2011. For the purpose of expediting the trial, the case was fixed on day to day basis for recording evidence w.e.f 13/12/2011 to 24/12/2011. The recording of evidence was concluded on 24/12/2011.
PROSECUTION EVIDENCE 3.0 Prosecution has examined 29 witnesses in support of its case. 3.1 PW1 SC Duggal is the member of the raiding party of the raid conducted on 16/2/94 at the office of Anurag Garg at 40 Hanuman Lane. He proved the check memo to this effect as Ex.PW1/A. CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 10 of 51 3.2 PW2 Sushil Kumar Agarwal, deposed on oath that he had been visiting Hanuman Temple at Cannought Place on every Tuesday regularly since 1984. Accused Gurmeet Singh had a telephone repairing shop behind Hanuman Mandir, Connaught Place and PW2 Sushil Kumar visited his shop once for the telephone repair. There Gurmeet Singh told him that he can arrange STD calls at a cheaper price and get a 10% discount on the STD bill. PW2 Sushil Kumar, as offered by accused Gurmeet Singh, started making STD calls through Gurmeet Singh. PW2 used to dial telephone number of Gurmeet Singh and used to give him the STD number on which PW2 wanted to talk and then Gurmeet Singh used to connect the line to that STD number and thereafter, he used to put PW2 Sushil Kumar on the conference call with that STD number. PW2 Sushil Kumar further stated that after every week or 10 days a Nepali looking boy used to come to PW2 on behalf of Gurmeet Singh and he used to collect the charges for the telephone calls made during that period. PW2 Sushil Kumar paid Rs. 10,000/ to 15,000/ to accused Gurmeet Singh on account of call charges. Accused Gurmeet Singh had told the witness that he would get discount from MTNL and is sharing the discount with PW2.
3.3 PW3 Sh. Ugar Sain testified that a telephone was applied in OYT category by Sh. Adicawasgi Chinoy r/o K 38B, DD Flats, Saket on 27/11/87 and since Sh. Adicawasgi Chinoy expired on 5/1/98 and an CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 11 of 51 application Ex.PW3/A was moved alongwith the documents for change of name by his widow Mrs. K.Adi Chinoy. Pursuant to this application, the change of name was allowed after completion of formalities the telephone was allotted vide OB No. 33065000464 on 27/1/90 in favour of Mrs K. Adi Chinoy. He proved the intimation regarding release of telephone as Ex.PW3/B. PW3 stated that the telephone was installed at K38B, DDA Flat, Saket, New Delhi17, with telephone No. 6863173.
PW3 Ugar Sain proved the application moved by Mrs. K. Adi Chinoy application for shifting of telephone at Flat No. 7, 40, Hanuman Lane, Connaught Place, New Delhi dated Nil as Ex.PW3/C. PW 3 Ugar Sain stated that the shifting of telephone was approved and the telephone was installed at Flat No 7, Hanuman Lane with telephone No. 312018. He proved the notesheet 24/C as Ex.PW3/D. 3.4 PW4 Sh. RK Saini and PW21 KK Hinduja were the members of the raiding party of the raid conducted on 16/2/94. PW4 RK Saini testified on oath that on 16/2/94, he received an order u/S 165 Cr.PC from DSP Sh. SK Peshin to conduct searches of Room No. 302 of Kidwai Nagar. Sh. AK Jain was incharge of R. No. 302 being AE at that time. Room No. 302 was found closed and it was got opened with the help of some MTNL employees. The key of that room was with Sh. AK Jain and he was duly called. In the search conducted, meters of telephone connections CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 12 of 51 bearing Nos. 312018, 310389, 345281 and 310043 were not found to be in working condition. He proved the panchnama prepared at the time on the spot as Ex.PW4/A. PW4 RK Saini stated that the wire of 1 or 2 meters were also found to be broken. The meters were in the custody of Sh. AK Jain. The search was made in the room of Sh. AK Jain and the documents lying there were seized vide Ex.PW4/A. PW21 KK Hinduja reiterated the statement made by PW4 RK Saini. PW21 KK Hinjuda deposed on oath that on 16.02.94 he alongwith Sh. B. L. Kanojia were directed by their boss to report to CBI office where they were deputed in different raiding party by the CBI alongwith other CBI officers and police constables. The raid was conducted at telephone exchange at Khursidlal Bhawan near Cannaught Place where some MTNL officials also met. The meter room was found locked. Thereafter, the meter room was got opened and the meters were checked and the entire proceedings were recorded vide Ex.PW4/A. 3.5 PW5 Sh. Dharampal was posted at Delhi Gate Telephone Exchange as JTO in the year 1994. The witness deposed regarding installation and change of address of telephone Nos. 312168, 312018, 345281, 3747011, 312478, 3746322 and 3747044. PW5 Dharampal stated on oath that as per commercial file of telephone No. 312168(D25), the telephone was applied by Sanjay Manchanda BE109, Tagore Garden on 21/2/86 in non CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 13 of 51 OYT Category and proved the same as Ex.PW5/A. As per record, an application Ex.PW5/B dated 5/1/90 was moved for change of installation address to 40, Hanuman Lane, Ground Floor, Connaught Place. The change of address was allowed and the telephone was sanctioned vide OB No. 110329798 vide letter dated 30/1/90 to be installed at 40 Hanuman Lane, Ground Floor, Cannought Place, New Delhi vide letter Ex.PW5/C. Telephone No. 345281 was applied by Sh. Arvind Kumar, J757, Mandir Marg, New Delhi in non OYT Category on 23/4/91 and the same was allotted on 24/2/92 vide letter Ex.PW5/E on out of turn priority basis and the same was released on 4/3/92 vide OB No. 110310605 vide letter Ex.PW5/F. Sh. Arvind Kumar applied for shifting of telephone No. 345281 to 40 Ground Floor, Hanuman Lane, New Delhi vide application Ex.PW5/G. Sh. Arvind Kumar also applied for provision of STD and ISD Facility vide application dated 8/6/93 and 9/7/93 Ex.PW5/H and Ex.PW5/I and ISD was allowed on 12/7/93 and OB No. 220350448 was issued.
Telephone No. 3747011 was applied by Modern State Agency Proprietor Gurmeet Singh, 40, Hanuman Lane, in non OYT General Category on 26/11/91 vide application Ex.PW5/J and the same was released on 5/8/92 vide OB No. 32031000221 vide letter Ex.PW5/K. As per record, permanent address of Gurmeet Singh was RB193, Sec. 6, RK Puram, New Delhi.
Telephone No. 312478 was applied by Amar Singh, 46/N, Shiv Mandir Baba Khadak Singh Marg, on 18/11/87 in non OYT Category vide CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 14 of 51 application Ex.PW5/L. The OB of the telephone connection was released on 14/3/88. An application Ex.PW5/M was moved for shifting of telephone at 40, Hanuman Lane (Garage Block) and the shifting was duly allowed vide letter dtd. 20/10/93 Ex.PW5/N. Telephone No. 3746322 (D19) was applied by Gurmeet Singh Kochar, 64/12, Legal Building Connaught Place with permanent address at RB193, Sector 6, RK Puram, New Delhi on 19/7/88 in non OYT Category vide Ex.PW5/O. An application Ex.PW5/P dated Nil was moved for change of installation address at 40, Hanuman Lane, Ground Floor, Connaught Place. The change of address was allowed and the telephone was sanctioned vide OB No. 520310002454 to be installed at 40 Hanuman Lane, Ground Floor, Cannought Place, New Delhi.
Telephone No. 3747044 (D20) was applied by Gurmeet Singh Kochar, RB193, Sector 6, RK Puram, New Delhi on 19/7/88 in non OYT Category vide Ex.PW5/Q. An application Ex.PW5/R dated 16/3/92 was moved for change of installation address by Sh. Gurmeet Singh at 40, Hanuman Lane, Ground Floor, Connaught Place. The change of address was allowed and the telephone was sanctioned vide OB No. 110310738 to be installed at 40 Hanuman Lane, Ground Floor, Cannought Place, New Delhi vide Ex.PW5/S. 3.6 PW6 Rafeeq Ahmed, PW7 Mohd. Fazil, PW9 Mohd. Kasim did not support the case of the prosecution and were declared hostile. CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 15 of 51 Despite cross examination by Ld. PP nothing material emerged from their testimonies.
3.7 PW8 MP Anand was posted as Divisional Engineer of 31, 34 and 35 exchange at Janpath at the relevant time. He deposed on oath that at the relevant time, AK Jain was posted as Asst. Engineer Meter Room situated at Kidwai Bhawan and accused AK Jain was the sole custodian of the meter room and the keys of it used to remain with the Asst. Engineer. AK Jain was the incharge of 31, 32, 34 & 35. There used to be 34 operators in the same. Since the key of the meter room used to be with the AE, the authority of opening the room should be with the AE. . AE Meter room was under duty to ensure that meters installed in meter room are functioning properly. PW8 MP Singh further stated that no one was permitted to tamper the meters installed in the meter room and AE is the sole officer responsible for proper functioning of the meter room.
3.8 PW10 Baldev Chand Bhangda was posted as Asstt. Engineer Cross Bar Exchange, Level 34, at Kidwai Bhawan, Delhi, at the relevant time and was Incharge of the maintenance of switch room of the said exchange. PW10 Baldev Chand deposed on oath that AK Jain, AE was Incharge of 31, 32, 34 and 35 and was the overall Incharge of the Meter Room. PW10 Baldev Chand further deposed that on 16/2/94, CBI had conducted raid in the meter CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 16 of 51 room. Immediately after the raid, the CBI officer asked PW10 to put telephone number 345281 on the observation machine pertaining to 34 Exchange and the calls made during 1520 minutes were recorded. He proved the print out regarding the same as Ex.PW10/A and Ex.PW10/A1. 3.9 PW11 Jitender Beniwal deposed on oath that around 20 days, before CBI conducted the raid, he had joined office of accused Anurag Garg as a part time Computer Operator. Accused Anurag Garg was into share broker business and was running his office under the name and style of City Satyam Share broking at 40 Hanuman Road in an office complex. Accused Gurmeet Singh was also running his office on the backside of the aforesaid office. PW11 Jitender deposed that there was one telephone in the office of Mr. Anurag Garg, on which he used to do share broking business and another telephone was installed at PCO, in the same office, outside the cabin which was having STD / ISD facility on it. PW12 Puran Singh Bhayana, posted as Asst. Engineer FRS deposed on oath that the telephone lines of level 310, 312 and 345 used to terminate in the meter room at 3rd Floor of Janpath Exchange. The meter readings were taken on fortnightly basis. The revenue is collected by the telephone department on the basis of such meter reading. PW12 Puran Singh further deposed that the subscribers are billed as per the pulse reading recorded in the meter of the subscribers regarding which a meter CPTR (Call per traffic revenue) is maintained. The meter CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 17 of 51 readings are taken by the operators under the Asstt. Engineer, Incharge of the meter room. Once in two months copy of the CPTR is sent to the Accounts Officer, MTNL for raising bills on the subscriber. PW12 Puran Singh further deposed that the area in the meter room is a restricted area being a sensitive place and the entry in the same is also restricted. The repair of meter or replacement of meter is done in the meter room and it is reflected in a separate register. PW13 Abdul Wahid deposed regarding installation of telephone No. 3269705 at his shop in his father's name. However, he did not tell anything regarding misuse of this telephone in any manner.
3.10 PW14 Sh. SP Singh was posted as Telephone operator in Janpath Exchange under Sh. AK Jain, AE. PW14 SP Singh deposed on oath that the recordings of meter used to be done quarterly and was recorded in the CPTR register. He proved the relevant entries in the CPTR as Ex.PW14/A regarding the reading of telephone No. 310043 as 26059 as on 13.01.94, 26307 as on 26.01.94 and 26617 as on 14.02.94. He also proved the meter reading of telephone No. 310389 as 64116 as on 13.01.94 was 63644, as on 28.01.94 was 63912 and as on 14.02.94 in the CPTR as Ex.PW14/B. PW15 Sh. Kiran Kumar posted as telephone operator in the meter room at Janpath telephone Exchange deposed that the exchange levels 310, 312 and 345 used to terminate at the meter room of Janpath Exchange after coming from switch room. PW15 Kiran Kumar was also working under AK Jain, AE CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 18 of 51 and proved the relevant extract of the CPTR register as Ex.PW15/A regarding the meter reading of 310217 as 95246 as on 27.11.93, 95286 as on 15.12.93, 96808 as on 29.12.93 and 97225 as on 12.01.94. PW 15 Kiran Kumar also proved the meter reading of telephone No. 312018 as 02705 as on 27.11.93, 02907 as on 15.12.93, 03114 as on 29.12.93 and 03318 as on 12.01.94, as Ex.PW15/B. He proved the meter readings of telephone No. 312168 as 09623 as Ex.PW15/C as on 27.11.93, 09830 as on 15.12.93, 09920 as on 29.12.93 and 10027 as on 12.01.94.
3.11 PW16 Sh. CSK Diwan deposed on oath that telephone No. 3261628 in the name of Balwant Singh Talwar was booked on 25.03.85. The OB of this telephone was issued on 22.05.92 by Sh. Kashmira Shah in the name of Sh. Balwant Singh Talwar, 2850, Chel Puri, Kinari Bazar, Delhi. PW16 CSK Diwan proved the said record as Ex.PW16/A. He proved the record regarding telephone number 3266786 opened on 26.04.91 vide OB Number 140270230 dated 09.04.91 in the name of Mohd. Sabir at No.2435 Turkman Gate, Delhi - 6, as Ex.PW16/B. He also proved the record regarding telephone number 3285439 opened on 14.04.93 in the name of Sh. Javed Masood Khan vide OB Number 140270471 dated 15.03.93 at shop No. 2158/61/3, Turkman Gate, Delhi - 6, as Ex.PW16/C. PW16 CSK Diwan also proved the relevant record of telephone No. 3279506 opened on 04.04.85 vide OB Number 11275565 dated 23.03.85 in the name of Mohd. CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 19 of 51 Hazi Sirajuddin at 2150, Turkman Gate, Delhi - 6, which was issued by the then Commercial Officer in the normal course of official proceeding, as Ex.PW16/D. The record of telephone number 3286785 opened on 19.11.93 vide OB Number 112264041 dated 28.10.93 in the name of Corporate Financial Services (proprietor being Vijay Kumar) at 3583/103 Netaji Subhash Marg, Darya Ganj, Delhi - 6 which was issued by the then Commercial officer in the normal course of official proceeding was proved as Ex.PW16/E. The record regarding telephone number 3283551 having OB Number 140270324 dated 06.02.92 and opened on 09.03.92 in the name of Mohd. Sabir who had his shop at 2435, Turkman Gate, Delhi - 6 was proved by PW16 CSK Diwan as Ex.PW16/F. 3.12 PW17 Sh. Sukhdev Prasad was working under AK Jain Asstt. Engineer at the relevant time. He proved the relevant extract of register (D41) on page 75 as Ex.PW17/A regarding the meter reading of telephone No. 312000 onwards recorded as on 21.05.93, 04.08.93, 07.10.93 and 01.12.93. Ex.PW17/A also contained the meter reading of telephone No. 312018 on Sr. No. 18, of the said register. PW17 Sukhdev Prasad proved the relevant extract of register D41 on page 81 regarding the meter reading of telephone No. 312150 onwards recorded as on 21.05.93, 04.08.93, 07.10.93 and 01.12.93 and the meter reading of telephone No. 312168 at S. No. 19 as Ex.PW17/B. He proved the relevant entry in the register D41 on page 94 CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 20 of 51 regarding the meter reading of telephone No. 312475 onwards recorded as on 21.05.93, 04.08.93, 07.10.93 and 01.12.93 and the meter reading of telephone No. 312478 at S.No. 4, as Ex.PW17/C. He proved the relevant extract at page No. 114 of the said register regarding meter reading of telephone No. 310025 onwards recorded as on 21.05.93, 04.08.93, 07.10.93 and 01.12.93 and the meter reading of telephone No. 310043 at S.No. 19, as Ex.PW17/D. PW17 Sukhdev Prasad also proved the relevant entry at page No. 130 of the said register regarding the meter reading of telephone No. 310375 onwards recorded as on 21.05.93, 04.08.93, 07.10.93 and 01.12.93 and the meter reading of telephone No. 310389 at S.No. 15, as Ex.PW17/E. 3.13 PW18 Mohd. Rizwan and PW19 Gulam Hussain are formal in nature. These witnesses pertained to accused Mohd. Sabir (since expired). However, both the witnesses denied knowing Mohd. Sabir.
PW20 Kalicharan was a member in the raiding party of the raid conducted in February 1994 at the premises of Gurmeet Singh at Hanuman Road. He proved the seizure of certain documents from the said premises vide search and seizure memo as Ex.PW20/A. 3.14 PW22 Sh. Ashok Kumar Gupta and PW24 Sh. K Sanjyan were the members of the raiding party that conducted raid on 16/2/94 at 40 Hanuman Lane. PW22 Ashok Kumar Gupta deposed on oath that he CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 21 of 51 alongwith PW24 Section Officer SH. K Sanjyan joined the raiding party of CBI on 16/2/94 and went to 40 Hanuman Lane, Cannaught Place on second floor and found certain telephones installed there and some people using the telephone. He proved the seizure of documents vide seizure memo as Ex.PW22/1, in which all the proceedings were recorded. PW 24 Sh. K Sanjyan deposed on the same lines of PW22 Ashok Kumar Gupta.
PW23 Yogesh Kumar deposed on oath that on 16/2/94, he joined a CBI raid conducted at STD/ISD Booth at Turkman Gate, Delhi, at about 7.15 PM. PW23 Yogesh Kumar deposed that two telephones were installed in the said booth and while the raiding party was present there, one or two persons had also come to make the call, but since many police officials were there, they were sent back. During this period, two telephone calls had come on the said telephones bearing No. 3266786 whereby request was made to connect the caller to somebody in foreign country. He proved the observation memo as Ex.PW23/A. 3.15 PW25 Sh. RC Thakur deposed on oath that he accompanied CBI and MTNL team as a witness and went to Old Delhi area to a room which was locked. The lock was broken. He proved the the seizure memo as Ex.PW25/A which was prepared after the raid. PW25 RC Thakur further deposed that a telephone instrument in working condition, was also seized during the raid.
CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 22 of 51 3.16 PW26 Sh. Prithvi Chand is a witness relating to Vijay Kumar who has already been discharged from the charges vide order dated 28/2/2011.
3.17 PW27 Sh. AK Kalia, the then DGM Administration proved the sanction for prosecution of accused OP Chaudhary as Ex.PW27/A. 3.18 The prosecution examined IO SP SK Peshin as PW28. PW28 SK Peshin deposed on oath that on 16.02.94 the investigation of this case was entrusted to him by SP. The case was registered on the complaint of one Sh. APS Sachdeva, AE Vigilance, Central, MTNL, New Delhi regarding providence of cheap STD / ISD facility to various customers by opening of an illegal exchange at 40, Hanuman Lane, Connaught Circus, New Delhi by the various accused named in the FIR Ex.PW28/A. Immediately after the receipt of the FIR, searches at various places were conducted on same day and different teams were formed for conducting search at 40, Hanuman Lane and some places at Bali Mahran and Turkman Gate Area. Simultaneously one more party was sent to Kidwai Bhawan exchange to monitor the meters of all the numbers especially those which were having ISD / STD facility. SK Peshin led the team for search at the office premises of accused Anurag Garg at 40, Hanuman Lane. The other team at 40 Hanuman Lane was led by CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 23 of 51 Inspt. Ved Prakash and Inspt. AK Mishra in respect of the premises Garage at 40 Hanuman Lane and top floor of the said building. An observation memo Ex.PW1/A was prepared regarding the observation at the premises bearing City Investments which was owned by accused Anurag Garg. Accused Anurag Garg had 4 telephones, out of which one telephone with ISD and one local line were terminating in the said room. In addition to this, it was found that on ISD phone a call was made to USA and the call matured but subsequently Sh. Saini, Insp. CBI sitting in the Kidwai Bhawan in the concerned room informed that call had not been metered. A call made to Jammu was also found not metered. Search of the said premises was conducted and certain documents including a diary showing the details of telephone numbers which had been called from this place for calls outside and details of payment received were seized. PW28 proved the disclosure statement of Parvez Ahmed and Gurmeet Singh as Ex.PW28/B and Ex.PW28/C. He proved the search cum seizure memo of the search conducted at office cum shop of STD Center, 2435, Turkman Gate, as Ex.PW28/D. PW28 further deposed that on 16/2/94 raid was conducted at premises of Super Fax Telecom Centre, Turkman Gate pertaining to JM Khan vide search cum seizure memo Ex.PW28/E. On 16/2/94 CBI also conducted raid at STD PCO Booth, shop No. 10094, Pul Bangash, Delhi belonging to accused Shakil Ahmed, and proved the observation memo as Ex.PW28/F. On 16/2/94 certain bills of STD / ISD calls were found lying on the counter of the STD PCO Booth, shop No. 10094, Pul Bangash, Delhi and CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 24 of 51 a conference instrument was found connected to telephone No. 734511 and 7532227. It was found that one telephone instrument was connected to the line of telephone No. 7774316 and the number was confirmed by dialling the telephone No. 734511. He proved the observation memo to this effect as Ex.PW28/G. He proved the disclosure statement of accused Anurag Garg as Ex.PW28/J. Pursuant to this disclosure statement, accused Anurag Garg led the police party to H.No.D12, West Jyoti Nagar, Delhi, where on pressing the bell, accused OP Chaudhary came out of the house and identified accused Anurag Garg. He proved the pointing out memo to this effect as Ex.PW28/H. PW28 proved the letter of MTNL No. Vig./GC59/307/JP/94 dated 22/3/94 vide which files pertaining to telephone Nos. 312018, 312478, 3747011, 3732486, 3747944, 3746311, 312168, 345281, regarding misuse of telephones for STD/ISD Calls at Hanuman Lane, Cannought Place, Delhi, were sent to SP CBI, as Ex.PW28/K. He also proved the seizure memo Ex.PW28/L vide which certain documents viz commercial file of telephone No. 310043 and 351286, OB register of the office of SDO (P); Janpath, MTNL, photostat copy of complaint dated 15/11/94 of Mrs. Kamla Sharma, dated 11/10/93 and annexure cum certificate were seized. He also proved the seizure memo Ex.PW28/M vide which certain documents viz commercial file of telephone Nos. 3281628, 7774316, 3286785, 3266786, 3279506, 3285439, 3283551 and 7532227 were seized from Sh. RS Yadav JTO (Vig.). PW28 SK Peshin also proved the seizure memo of 03 registers viz., CPTR - III Register of Janpath Exchange for level 310 (15/11/93 to 15/1/94), level 312 CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 25 of 51 (15/11/93 to 15/1/94), level 345 (15/11/93 to 15/1/94), were seized from PS Bayana, AE, FRS as Ex.PW28/N. PW28 SK Peshin deposed that he applied for sanction to prosecute as required u/S.19 of PC Act through SP in respect of public servants and sanction order Mark 28/1 and 28/2 against accused AK Jain and MP Singh was granted for prosecution of both the accused. PW28 SK Peshin deposed that he obtained specimen writing of various accused including accused Anurag Garg Ex.PW28/O and sent the questioned document to GEQD, Shimla for opinion vide letter Ex.PW28/P dated 14.02.95 under the signatures of Sh. Rupak Dutta, the then SP, ACB, New Delhi and thereafter, obtained opinion Ex.PW28/Q dated 26.05.95. 3.19 PW29 MS Singhal is a formal witness who had filed the chargesheet in the Court against the accused persons. STATEMENT OF ACCUSED PERSONS u/S 313 Cr.PC.
4.0 In their statement u/S 313 Cr.PC, accused persons denied all the allegations submitted that they have been implicated falsely. Accused persons almost sang the same song that they were innocent and were implicated falsely.
Accused Gurmeet Singh stated that he was running a telephone repairing shop at a small place at 40, Hanuman Lane which is a plot of 440 sq.meters having around 24 offices operating from this building. He stated that he owns only one of the above 24 offices, and denied having 07 CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 26 of 51 telephone numbers or that these telephones were operating from his office. Accused Gurmeet denied knowing PW2 Sushil Kumar and stated that he never ran any PCO Booth from the premises. He also denied having made any promise to PW2 Sushil for providing him STD calls at cheaper rate and offering 10% discount on the STD bills. Accused Gurmeet Singh put defence of denial and stated that he has been implicated falsely.
Accused AK Jain in his statement u/S 313 Cr.PC stated that apart from him in the meter room, there was one JE, four telephone operators and one wireman. Divisional Engineer was the overall incharge of the meter room. AK Jain stated that there were two keys of the meter room one key used to remain with the DE and other with JE. Telephone Operator (TO) used to record readings of the pulses of the telephone connections in the CPTR Register every fortnight. Accused AK Jain stated that whenever, they found any suspicious reading they used to bring it to his notice. He further stated that TO never brought anything to his notice regarding non recording of pulse of any telephone connection. The meter reading in the CPTR register had been regularly maintained till 14/2/94 in which no meter was found at fault. Accused AK Jain stated that there were 6000 lines in the meter room and the officers posted in the meter room do not know their subscribers or any fault in the line at any time. From the meter room, there cannot be any identification of any STD / ISD facility on any meter. Accused AK Jain stated that the CPTR register itself shows that recording of the pulses had been regularly maintained therein. MTNL had never offered any CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 27 of 51 concession for any calls. He stated that the panchnama Ex.PW4/A is a manipulated document and it does not contain true facts. He also denied that the key of the meter room was provided by him. AK Jain stated that JE provided the key from which the meter room was opened. The custody of the meter room was with the DE who was the overall incharge of the meter room.
Accused OP Chaudhary also denied the allegations levelled against him and submitted that he is innocent and has been falsely implicated. He denied having worked in the meter room at Janpath. He stated that Ex.PW4/A is a manipulated document. Accused OP Chaudhary stated that the sanction Ex.PW27/A was granted mechanically. He denied knowing Anurag Garg and stated that Anurag Garg never visited his home at any point of time. He denied of any conspiracy with his coaccused persons as he did not know any of the coaccused. Accused OP Chaudhary stated that he was posted in Jor Bagh Extension from April 92 to August 93 and thereafter, was posted at GM (North) Tis Hazari Exchange from 4/8/93 till Sept., 1994. From Sept. 1994 to October 1996 he was posted at Kerala Circle and thereafter from October 1996 onwards he was posted at Secunderabad. He retired on January 2010 from there. However, he stated that he had never been posted at Janpath Exchange at the time of raid.
Accused MP Singh stated that he was posted in Dilshad Garden Exchange from 1984 to 1994. He further stated that he did not know AK Jain or any of his coaccused and had never been posted at Janpath Exhange CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 28 of 51 Kidwai Bhawan, New Delhi. Accused MP Singh also stated that the sanction Mark 28/2 was granted mechanically without any application of mind.
Accused Anurag Garg in his statement u/S 313 Cr.PC stated that he was running business of share broker at a small portion at 40, Hanuman Lane. There are about 24 offices being run from this premises. This is a building on the plot of 440 sq meters. However, he stated that he had never been dealing in PCO Business and that no telephone connection was installed in the said portion. He denied having provided any facility of cheap ISD / STD calls to any person including outlets in Bali Maraan and Turkman Gate etc. Observation memo Ex.PW1/A is a manipulated record. No recovery of any incriminating article was effected from him or at his instance. He also denied that any call had been made from his office or that it had not been found metered. Accused Anurag Garg denied having made any disclosure statement Ex.PW28/J. Accused Anurag Garg stated that he did not lead the police party to the house of OP Chaudhary at D12, west Jyoti Nagar or that OP Chaudhary came out and he (Anurag Garg) identified him. Accused Anurag Garg stated that the pointing out memo Ex.PW28/H is a manipulated document and that his signatures were obtained on certain papers by the CBI which have been misused by them. He also stated that the diary containing Mark Q1 to Q10 is a manipulated document and that he was made to write certain numbers on the pages of diary under duress while in CBI custody.
Accused Shakil denied anything having been recovered from CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 29 of 51 him. He stated that the observation memo Ex.PW28/F is a false document.
Accused Irfan, Parvez, Wasim and Aneesuddin denied all the allegations levelled against them and pleaded innocence. ARGUMENTS ON BEHALF OF ACCUSED PERSONS 5.0 Sh. SP Ahluwalia, Sh. Puneet Ahluwalia and Sh. NC Jain, Ld. Counsels for the accused persons initiated the arguments by reading out the charge framed against the accused persons. It has been submitted that there is no evidence on the record so as to substantiate the charge of cheating, misconduct, abuse of official position and for the offence u/S 25 Telegraph Act. The presumption as prescribed u/S 20 PC Act is not available for the offence alleged u/S 13(1)(d) of the PC Act. It has been submitted that in absence of the presumption the CBI is duty bound to prove its case against the accused persons beyond reasonable doubt. In support of his contention, Ld. Counsel has cited Subhash Parbat Sonvane Vs. State of Gujarat, AIR 2003 SC 2169.
On the point of sanction, Sh. Ahluwalia, Ld. Counsel has argued that the sanction granted by the competent authorities is without any application of mind. Ld. Counsel invited the attention of the Court towards the sanction granted and to buttress his point Ld. Counsel submitted that all the sanction on record are verbitam in nature which is sufficient to indicate that sanction has been accorded in a mechanical manner. It has been CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 30 of 51 submitted that sanction has not been proved in accordance with law. In support of his contention, Ld. Counsel cited Mansukhlal Vithaldas Chauhan Vs. State of Gujarat, 1997 Cri.LJ 4059 and Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, 1979 CriLJ 633. On the point of sanction it has been submitted that sanction u/s 197 Cr.PC has also not been placed on the record by the CBI. On the provisions of Prevention of Corruption Act, Ld. Counsel submitted that there is not even an iota of evidence regarding obtaining of pecuniary thing or advantage and therefore, the CBI has miserably failed to prove its charge u/s 13(1)(d) of the PC Act against the public servants. In respect of the conspiracy, Ld. Counsel submitted that there is no thread of evidence which could connect the accused persons with each other. There is no evidence direct or circumstantial which could indicate any element of conspiracy amongst the accused persons. Sh. Ahluwalia, Ld. Counsel submitted that conspiracy cannot be held to be proved merely on the asking of prosecution. Prosecution is duty bound to place on record some material on the basis of which it can be inferred that a conspiracy was existing amongst the accused persons.
On the point of fact as alleged by the prosecution that accused Gurmeet Singh and Anurag Garg were running an illegal exchange at 40 Hanuman Lane, Ld. Counsel submitted that 40 Hanuman Lane is a property of around 400 sqmeters and which is in possession of 24 persons. Accused Gurmeet Singh is having only small portion in that property. CBI has not CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 31 of 51 proved anything on the record to suggest that Gurmeet Singh was in exclusive possession of 40 Hanuman Lane. Around 24 persons are in possession of 40 Hanuman Lane. Therefore, the telephone installed at the address 40 Hanuman Lane cannot be attributed to Gurmeet Singh. There is also no evidence to suggest that Gurmeet Singh had let out any premises to Anurag Garg, Sh. Ahluwalia, Ld. Counsel took the court through the evidence led by the prosecution regarding the CPTR (Call Pattern Tariff Register). Ld. Counsel submitted that the case of the CBI is that the meters were not functioning property and the calls made on such telephones were not metered which caused monetary loss to the MTNL and in this way MTNL was cheated. However, prosecution did not prove the calls actually made from these telephones. Ld. Counsel has submitted that even as per the evidence of the prosecution, the calls were duly recorded as per CPTR register. Even the prosecution did not prove the bills of the telephone numbers.
Ld. Counsel submitted that investigation in this case has been conducted in a very shoddy manner. IO has just acted casually. He did not care to collect any evidence which could connect the accused persons with the offence and accused persons were just implicated at the whims of the IO. The test meter was not produced and no test report was placed on the record. Sh. SP Ahluwalia, Sh. Puneet Ahluwalia and Sh. NC Jain, Ld. Counsels concluded their arguments with the point that there is no evidence so as to CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 32 of 51 the cheating or loss to the public exchequer and to connect the accused persons.
ARGUMENTS ON BEHALF OF CBI 5.1 Sh. DK Singh, Ld. PP for CBI vehemently countered all the arguments of the defence counsels and submitted that there is sufficient material on record so as to prove the offence of conspiracy amongst the accused persons. Ld. PP submitted that it is very difficult to bring direct evidence in the case of conspiracy and the Court is required to marshall the evidence and appreciate the evidence in such a manner so as to find out the element of conspiracy amongst the accused persons. Ld. PP has submitted that even without taking help of presumption as laid down u/S 20 of PC Act, CBI has sufficient material on record to prove the charges against the accused persons on the strength of direct evidence. In respect of sanction u/S 197 Cr.PC, Ld. PP submitted that in Parkash Singh Badal & Anr. Vs. State of Punjab & Ors., 2007 (1) SCC 1, it has been specifically laid down that no such sanction is required. Sh. DK Singh, Ld. PP further argued that in respect of sanction, the defence at no point of time has pleaded any prejudice nor is there any averment of miscarriage of failure of justice and it does not lie with the defence at this stage that the sanction was not proved in accordance with law. Ld. PP has taken the Court through the evidence of all the prosecution witnesses. Ld. PP specifically relied upon PW4 RK Saini, CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 33 of 51 PW8 MP Anand, PW10 Baldev Chand Bangda, PW14 SP Singh, PW15 Kiran Kumar and PW17 Sukhdev Prasad, so as to prove that accused AK Jain was the sole custodian of the meter room and the meters of the telephones installed at Gurmeet Singh's premises were not working. Ld. PP submitted that the cumulative effect of the statement of the witnesses and the observation memo and the seizure memo on the record prove that there was active conspiracy between AK Jain and Gurmeet Singh and AK Jain being incharge of custodian of the room abused his official position and Gurmeet Singh took pecuniary advantage out of the same. Ld. PP relied upon the testimony of PW2 Sushil Kumar so as to prove that Gurmeet Singh had been running illegal telephone exchange at his premises. He allured people to make STD calls through his exchange and even offered discounts to them. Ld. PP submitted that there was no occasion for Gurmeet Singh to offer discount and the fact that he offered discount equally proves that there was conspiracy amongst the MTNL officials and Gurmeet Singh. Ld. PP has submitted that there is sufficient evidence against accused Anurag Garg. However, he has been very fair to submit that though handwriting report is positive but the number in the diary does not match with the telephone print out filed by the CBI. Ld. PP has submitted that CBI has successfully proved its case against the accused persons and they are liable to be convicted. 6.0 I have heard the Ld. PP for CBI and Ld. Counsels for the accused persons and perused the record carefully.
CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 34 of 51 7.0 The prosecution is obliged to prove its complete story as alleged against accused persons in the chargesheet. The minor discrepancies / contradictions per se would not be sufficient to throw out the case of the prosecution but where the discrepancies or contradictions are serious and demolish the case of the prosecution, in that case, advantage must go to the accused. It is a settled proposition that if the circumstances are sufficient to prove the offence, conviction can be recorded even in the absence of direct witness. However, the rule of caution is that such circumstantial evidence should form a complete chain of evidence. The law regarding circumstantial evidence is very well settled. In cause celiber, the Apex Court in Sharad Birdichand Sarda V. State of Maharashtra, AIR 1984 SC 1622, the Hon'ble Supreme Court held that the following conditions must be fulfilled before a case against an accused can be said to be fully established: namely, "(1) The circumstances from which the conclusion of guilt is to be drawn should be fully established;
(2) The facts so established should be consistent only with the hypothesis of the guilty of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 35 of 51 hypothesis except the one to be proved, and there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
7.1 In the case of circumstantial evidence, the duty of the prosecution firstly, is to firmly establish the circumstances and the material produced by the prosecution should be a definite pointer towards the guilt of the accused. Prosecution is duty bound to prove its case beyond reasonable doubt. The prosecution cannot take advantage of the weakness of the defence of the accused. The accused is not required to prove its case with the same amount of rigour and certainty as the prosecution is required to prove the criminal charge. It is sufficient for the accused to have put forward a probable or reasonable explanation which is sufficient to throw doubt on the prosecution case. There are three cardinal principles of criminal jurisprudence:
(1) the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from the weakness or falsity of defence version by while proving its case;
(2) In a criminal trial, an accused must be presumed to be innocent unless he is proved to be guilty; and, CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 36 of 51 (3) onus of the prosecution never shifts. (Reference can be made to Rabindra Kumar Dey Vs. State of Orissa, AIR 1977 SC 170).
7.2 In criminal trial, it is not at all obligatory on the accused persons to produce evidence in support of his defence and for the purpose of proving his version he can rely on the admissions made by the prosecution witnesses or on the documents filed by the prosecution.
In order to convict a person under the Prevention of Corruption Act, the prosecution is required to prove that mere failure or omission on the part of the accused is not sufficient. There has to be some acquiescence to bring home the offence.
7.3 The accused persons have been charged for the offence of conspiracy. Section 120(A) reads as under: "120A - Definition of criminal conspiracy -
When two or more persons agree to do, or cause to be done,
1. an illegal act, or
2. an act which is not illegal by illegal means, such an agreement is designated a criminal conspiracy:
Provided that no agreement except an agreement to commit an offence shall amount to a criminal conspiracy unless some act besides the agreement is done by one or more parties to such agreement in pursuance thereof.CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 37 of 51
Explanation.It is immaterial whether the illegal act is the ultimate object of such agreement, or is merely incidental to that object."
It is a settled proposition that it is difficult to find out the direct evidence in the case of conspiracy because normally the conspiracy is hatched in the dark and executed in utter secrecy but there has to be some caution and credible evidence on record to attribute the conspiracy to the accused persons.
In Ramnarain Popli Vs. CBI, 2003 Cri.L.J. 4801, it has been inter alia held as under :
"For the offence of conspiracy some kind of physical manifestation of agreement is required to be established."
Section 120B IPC provides for punishment for criminal conspiracy. Criminal conspiracy is an independent offence. It is punishable separately. Prosecution, for the purpose of bringing the charge of criminal conspiracy read with the provisions of the Prevention of Corruption Act is required to establish the offence by applying the legal principles which are otherwise applicable for the purpose of proving criminal misconduct on the part of an accused. A criminal conspiracy must be put to action inasmuch as so long a crime is generated in the mind of an accused, it does not become CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 38 of 51 punishable. What is necessary is not thoughts, which may even be criminal in character, often involuntary, but offence would be said to have been committed thereunder only when that take concrete shape of an agreement to do or cause to be done an illegal act or an act which although not illegal by illegal means and then if nothing further is done the agreement would give rise to a criminal conspiracy.
7.4 What is, therefore, necessary is to show meeting of minds of two or more persons for doing or causing to be done an illegal act or an act by illegal means. While saying so, court is not oblivious of the fact that often conspiracy is hatched in secrecy and for proving the said offence substantial direct evidence may not be possible to be obtained. An offence of criminal conspiracy can also be proved by circumstantial evidence.
In Kehar Singh and Ors. v. State (Delhi Administration), 1988 (3)SCC 609 at 731, this Court has quoted the following passage from Russell on Crimes (12th Edn. Vol 1):
"The gist of the offence of conspiracy then lies, not in doing the act, or effecting the purpose for which the conspiracy is formed, nor in attempting to do them, nor in inciting others to do them, but in the forming of the scheme or agreement between the parties. Agreement is essential. Mere knowledge, or even discussion, of the plan is not, per se enough."CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 39 of 51
In State (NCT) of Delhi v. Navjot Sandhu @ Afsan Guru (2005) 11 SCC 600, the Hon'ble Supreme Court inter alia held as under:
"101. One more principle which deserves notice is that the cumulative effect of the proved circumstances should be taken into account in determining the guilt of the accused rather than adopting an isolated approach to each of the circumstances. Of course, each one of the circumstances should be proved beyond reasonable doubt. Lastly, in regard to the appreciation of evidence relating to the conspiracy, the Court must take care to see that the acts or conduct of the parties must be conscious and clear enough to infer their concurrence as to the common design and its execution."
In Yogesh @ Sachin Jagdish Joshi v. State of Maharashtra (2008) 6 SCALE 469, the Hon'ble Supreme Court opined as under :
"23. Thus, it is manifest that the meeting of minds of two or more persons for doing an illegal act or an act by illegal means is sine qua non of the criminal conspiracy but it may not be possible to prove the agreement between them by direct proof. Nevertheless, existence of the conspiracy and its objective can be inferred from the surrounding circumstances and the conduct of the accused. But the incriminating circumstances must form a chain of events from CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 40 of 51 which a conclusion about the guilt of the accused could be drawn. It is well settled that an offence of conspiracy is a substantive offence and renders the mere agreement to commit an offence punishable even if an offence does not take place pursuant to the illegal agreement."
In the present case, I find that there is no evidence even worth of name to connect the accused persons with each other. The evidence which has been produced by the prosecution is of such a weak nature that it does not have any common thread to connect with each other. The center point of the case of the prosecution is that the accused persons in conspiracy with the MTNL employees got the meters tampered and thereby caused loss to the government. The prosecution has not examined even a single witness who could prove the number of telephone calls actually made from such telephones and the telephone calls made from the said telephones. Even the MTNL did not prove the telephone bills of these telephone numbers during the relevant period. There is no evidence to prove the conspiracy amongst the accused persons. Hence, the charge u/S 120B IPC against the accused persons falls.
7.5 It is pertinent to mention here that the test for framing of charge are different from test for final judgment as at the stage of charge, strong suspicion would be sufficient, in the later proved beyond reasonable doubt is CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 41 of 51 necessary. Since the charge for conspiracy has been framed, the prosecution is duty bound to prove that the criminal misconduct has been committed though the ingredients of "misconduct" as required u/S 13 of Prevention of Corruption Act is required to be proved against the public servant only, however in the case where the charge of conspiracy is framed amongst the public servant and private person, the prosecution is duty bound to bring some material on record having shade of criminal misconduct on the part of private persons also. In case the act, omission or conduct on the part of persons other than public servants have no inkling of misconduct as defined u/S 13 PC Act, it would be difficult for the prosecution to say that the charge of conspiracy has been proved against the accused persons.
Section 13 of the Prevention of Corruption Act provides for criminal misconduct by a public servant. The offence of criminal misconduct can be said to have been committed, if in terms of Sec. 13(1)(d) PC Act, a public servant abuses his position and obtains for himself or for any other person any valuable thing or pecuniary advantage or while holding office as a public servant obtains for any person any valuable thing or pecuniary advantage without any public interest.
7.6 The term "misconduct" came up for discussion in State of MP Vs. Sheetla Sahai & Ors, Crl. Appeal No. 1417 of 2009 [Arising out of SLP (Crl.) No. 4130 of 2006]. In the said case, it was inter alia held as CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 42 of 51 under : "In Inspector Prem Chand v. Govt. of N.C.T. of Delhi & Ors. 2007 AIR SCW 2532, this Court observed:
"In State of Punjab and Ors. vs. Ram Singh Ex. Constable 1992 (4) SCC 54, it was stated:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as: "Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
In P. Ramanatha Aiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 43 of 51 under:
"The term `misconduct' implies, a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word `misconduct' is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct." (Refer to Bharat Petroleum Corpn. Ltd. vs. T.K. Raju, [2006 (3) SCC 143]."
54. Even under the Act, an offence cannot be said to have been committed only because the public servant has obtained either for himself or for any other person any pecuniary advantage. He must do so by abusing his position as public servant or holding office as a public servant. In the latter category of cases, absence of any public interest is a sine qua non."
7.7 Thus, in order to bring an act of public servant within the purview of misconduct, there has to be some overt act on his part. An omission on the part of public servant may amount to dereliction of duty or sheer negligence but there has to be some thing more to bring it within the domain of Prevention of Corruption Act. There is huge difference between criminal liability and the dereliction of duty. I consider that in the present CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 44 of 51 case, the act , conduct and omission on the part of AK Jain may amount to dereliction of duty or sheer negligence but there is not sufficient material on record to hold him guilty for misconduct as required u/S 13 of the Prevention of Corruption Act.
7.8 The defence has taken the plea that the sanction in the present case has been granted mechanically and so there is no application of mind on the part of the sanctioning authority. There cannot be any doubt to the proposition that sanction is a condition precedent for taking cognizance of offence against a public servant under Prevention of Corruption Act. I am of the considered opinion that AK Jain is also entitled for benefit of doubt.
In Basdeo Agarwal V. Emperor, AIR 1945 FC 16, it was inter alia held that sanction under the Act is not intended to be, nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness. It is a settled preposition that the grant of sanction is not an idle formality or an acrimonious exercise. It is a solemn and sacrosanct act. The sanction lifts the bar for prosecution. Infact the sanction is a protection to Government servant against frivolous prosecution. The sanctioning order must ex facie disclose that the sanctioning authority has considered the evidence and other material placed before it. The prosecution in the present case has not examined the authorities who had accorded sanction against AK Jain and MP Singh. Their sanction order have CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 45 of 51 been placed on record by the Investigation Officer. 7.9 In the present case, charge u/S 13(1)(d) of the Prevention of the Corruption Act has been framed. If we read Section 7, 13(1)(a), 13(1)(b) and 13(1)(d) in juxtaposition we would find that in Sec.7 and 13(1)(a) and (b) of the Act, the legislature has mentioned the words "accepts" or "obtains". Whereas in Section 13(1)(d), the legislature has not used the word "accept", it has only used the word "obtains". The word "obtains" does indicate acceptance of illegal gratification. However, when we compare "obtain" with "accept", the distinction seem to be that in the case of "obtains" there has to be some element of effort on the part of the receiver. In contrast, in the case of "accepts", the initiative is on the part of the giver. This came up for discussion in Ram Krishan & Anr Vs. State of Delhi, (1956) SCR 183, wherein it was inter alia held as under: "In one sense, this is no doubt true but it does not follow that there is no overlapping of offences. We have primarily to look at the language employed and give effect to it. One class of cases might arise when corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage. The word 'obtains', on which must stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 46 of 51 money. This is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion:
in each case, he obtains a pecuniary advantage by abusing his position as a public servant...." The Court further observed that "It is enough if by abusing his position as a public servant a man obtains for himself any pecuniary advantage, entirely irrespective of motive or reward for showing favour or disfavour."
Reference can also be made to M.W. Mohiuddin V. State of Maharashtra, (1995) 3 SCC 567. Section 13(1)(d) also came up for interpretation before the Hon'ble Supreme Court in Subhash Parbat Sonvane V. State of Gujarat, AIR 2002 SC 2169. In this case, it was inter alia held as under:
5. In our view, mere acceptance of money without there being any other evidence would not be sufficient for convicting the accused under Section 13(1)(d)(i). Section 13(1)(d) is as under: '13. Criminal misconduct by a public servant.(1) A public servant is said to commit the offence of criminal misconduct.
(d) if he,
(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage: or
(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage: or CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 47 of 51
(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest.'
6. In Section 7 and 13(1)(a) and (b) of the Act, the Legislature has specifically used the word "accepts" or obtains". As against this, there is departure in the language used in clause (1)(d) of Section1 3 and it has omitted the word "accepts"
and has emphasized the word "obtains". Further, the ingredient of subclause (i) is that by corrupt or illegal means, a public servant obtains any valuable thing or pecuniary advantage: under clause (ii), he obtains such thing by abusing his position as public servant: and sub clause (iii) contemplates that while holding office as the public servant, he obtains for any person any valuable thing or pecuniary advantage without any public interest. Therefore, for convicting the person under Section 13(1)(d), there must be evidence on record that accused "obtained" for himself or for any other person any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest."
I consider that in the present case, the prosecution has not led any evidence which could suggest that public servants had made any demand for illegal gratification or obtained any pecuniary advantage for themselves CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 48 of 51 or for any other person.
7.10 In the present case, the evidence produced by the prosecution is replete with vital contradictions and material infirmities and therefore, on the basis of such evidence it is unsafe to convict the accused for the commission of offence in question.
The evidence against accused Gurmeet Singh is also indicating that he had many telephone numbers installed at his premises and evidence of PW2 Sushil Kumar also indicates that he was offering some discount to his consumers. But even on the direct question put to the prosecution, it has been fairly submitted by Ld. PP that there is no rule to suggest that a person cannot have telephone more than 1, 2 or 3. There is no evidence on record to suggest that a person cannot have 'n' number of telephones. There is no material on record to suggest that a person cannot offer conference facility to his consumers. Again, the material on record, the evidence of the prosecution witnesses and the fact that 'n' number of telephones were installed at the premises of Gurmeet Singh, the conduct seems to be doubtful but at the same time, the evidence is not sufficient to hold accused Gurmeet Singh guilty for the offence charged against him. Hence, he is liable to be given benefit of doubt and acquitted.
7.11 In respect of other accused persons, I feel that there is no CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 49 of 51 sufficient material on record to substantiate the charge of conspiracy amongst the accused persons. Hence, the remaining accused persons namely, Anurag Garg, OP Chaudhary, MP Singh, Parvez Ahmad, Irfan, Wasim, Aneesuddin, Shakil are acquitted for the offence u/Ss 120B IPC r/w 418, 420 IPC & Sec. 25 of Indian Telegraph Act and, u/S 13(1) (d) r/w Sec. 13(2) PC Act and, substantive offences u/S. 418, 420 IPC & Sec. 25 Indian Telegraph Act in RC No. 13(A)/94 - DLI.
7.12 Accused persons are on bail. Their Sureties are discharged. Their bail bonds are cancelled. Original documents, if any, on record, be returned to the accused against proper acknowledgment. 8.0 File be consigned to RR.
Announced in the open court (Dinesh Kumar Sharma) today on 13.01.2012 Spl. Judge(PC Act) CBI: Saket Courts : New Delhi CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 50 of 51 CC No.50/11 CBI Vs. Gurmeet Singh & Ors. RC No. 13(A)/94 13/1/2012 Present: Sh. DK Singh, Ld. PP for CBI.
All accused on court bail with Sh. SP Ahluwalia, Sh. Puneet Ahluwalia and Sh. NC Jain, Ld. Counsels.
Arguments heard.
Vide separate judgment, all accused persons namely Gurmeet Singh, AK Jain, Anurag Garg, OP Chaudhary, MP Singh, Parvez Ahmad, Irfan, Wasim, Aneesuddin, Shakil are acquitted for the offence u/Ss 120B IPC r/w 418, 420 IPC & Sec. 25 of Indian Telegraph Act and, u/S 13(1) (d) r/w Sec. 13(2) PC Act and, substantive offences u/S. 418, 420 IPC & Sec. 25 Indian Telegraph Act in RC No. 13(A)/94 - DLI.
Accused persons are on bail. Their Sureties are discharged. Their bail bonds are cancelled. Original documents, if any, on record, be returned to the accused against proper acknowledgment.
File be consigned to RR.
(Dinesh Kumar Sharma) Spl. Judge(PC Act) CBI:
Saket Courts : New Delhi CBI Vs. Gurmeet Singh & Ors. CC No. 50/11 Page 51 of 51