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1. The present revision petition under Section 397/399 Cr.P.C. has been filed against the order dated 27.05.2002 passed by the ld. Additional Chief Metropolitan Magistrate vide which the revisionist Deepak Gupta has been summoned in the complaint case no. 880/1 dated CR No. 49A/02 27.05.2002 under Section 56 of FERA,1973 read with Section 49(3) and (4) of FEMA, 1999, filed by the respondent against the present revisionist Deepak Gupta and five other accused persons.

2. The brief back ground of the present complaint is that on the complaint of M.T.N.L. alleging misuse of ISDN telephone lines which caused loss to the exchequer and FIR No. 136/2000 was registered at police station Greater Kailash under Section 4 and 20 of Indian Telegraph Act and under Section 420/120B IPC. The petitioner Deepak Gupta has claimed that he was an I.I.T. Graduate in Engineering, and was providing freelance consultancy services to various companies and had visited the office of M/s. Intergroup C. & E. Limited at Greater Kailash, New Delhi, on 03.05.2000 on which date the M.T.N.L. Officials conducted raid in the premises of this Company and arrested the petitioner alongwith other persons. The petitioner was granted bail by Hon'ble High Court after 20 days of judicial custody. While the petitioner was in judicial custody, the officers of Enforcement Directorate interrogated the petitioner on 12.05.2000 in Delhi and recorded his statement. Suddenly after a gap of 02 years, the Enforcement Directorate served him with a opportunity notice which was received by him on CR No. 49A/02 18.05.2002 which he was asked to submit his reply within three days. Similarly other accused persons namely Sanjay Malviya and Devashis Bhattacharya, Directors of the said Company were also served with the opportunity notices on 23.05.2002 and 24.05.2002. The petitioner filed his reply to the opportunity notice on 22.05.2002 while the other accused submitted their reply on 27.05.2002. Thereafter, the present complaint had been filed before ld. Additional Chief Metropolitan Magistrate in great haste since the sunset period deadline was 31.05.2002 after which new Act i.e FEMA was to become effective.

6. On the other hand, the respondent has explained that the accused firm had taken 24 ISDN lines and same were found busy day and night which indicated that the said lines were being misused. One ISDN line had been CR No. 49A/02 made permanent channel at each of the two premises where the 24 ISDN lines were provided and by using the sophisticated equipment international calls were being distributed to Delhi and nearby areas illegally through one ISDN lines by using some compression decompression equipment at both ends, this band width was misused to make 24 voice calls into one single ISDN call and the said call was distributed to multiple local lines illegally obtained from M.T.N.L. In the said process huge financial loss was caused to Government of India in terms of foreign exchange which was calculated to the tune of Rs. 5 crore by M.T.N.L. It is claimed that switching of calls through MTNL network was not permitted without a licence from Central Government as per provision of Section 4 Telegraph Act and such act of the accused persons were in violation of law.

23. It is also significant to note that on a similar complaint of MTNL an FIR No. 136/2000 had been registered against the petitioner along with other accused under Sections 420/406/120B IPC and Section 4/20 of Indian Telegraph Act. The accused persons had been discharged by the ld. Metropolitan Magistrate for the offences under Sections 420/406/120B IPC vide order dated 24.07.2004 which has not been challanged. In the said order it was noted that the prosecution alleged that number of sophisticated instruments which were not permitted under the Indian Telegraph Rules,1951 were being used for decompressing the date received from USA through ISDN lines and distributed to the clients in Delhi and its nearby area. The telephone lines were duly obtained from MTNL. It was observed that decompression of data was inherent during the transmission through ISDN lines and , therefore, it cannot be said that they illegally compressed or decompressed CR No. 49A/02 the calls received from USA for transmission to the clients in Delhi. More over, it cannot be said that the accused persons had misused the ISDN lines as they were doing the business for which they had got sanctioned the ISDN lines on lease by the MTNL. Further more, there was no specific way of calculation of wrongful loss to the Government of India and wrongful gain to the accused. In order to attract provision of Section 120B IPC there must be some evidence on record to show the meeting of mind of the accused persons resulting in ultimate decision taken by them to commit the offence under Section 420/406 IPC. It was thus concluded that no offence under section 420/406 IPC/120B IPC was made out and the only offence prima facie made out was for the offence under section 4 of Indian Telegraph Act,1885 for not having sought the permission under the act in respect of ISDN lines to be used for compressing or de-compressing the data. This order of the ld. Additional Chief Metropolitan Magistrate further clarified that there was no conspiracy amongst the accused persons in regard to the commission of the entire offence of illegal transmission.