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No other witness was examined in defence.

39 During course of his submissions, it was submitted by ld. PP for CBI that co-accused Dinesh Kumar Bansal, Rakesh Bansal & Prabhat Kumar had already pleaded guilty and had been convicted and sentenced on 03.06.2003. It was submitted that as the said convicts had been jointly charged with present accused persons for having conspired to commit the offence, plea of guilt of those convicts could be taken into consideration in the present matter U/s. 30 of the Evidence Act. It was further submitted that prosecution had proved on record that the accused persons had conspired together to misuse ISD/STD facilities in respect of telehones installed in House No. 49-A, Pocket-D, Ashok Vihar by way of passing the metering equipments at Shakti Nagar Telephone Exchange and that a parallel telephone Exchange was being run by the accused persons at the said premises in furtherance of conspiracy of each of them. It was submitted that by way thereof, the accused persons had caused wrongful loss to Government of India and wrongful gains to themselves. Attention of this Court was also drawn to testimonies of the prosecution witnesses who, it was submitted had duly proved case of the prosecution. It was submitted that accused Harnam Dass had posed himself as Anil Kumar Singh before the other co-accused persons and was receiving sum of Rs.12,500/- p.m. from Dinesh CC No. 20/2010 Page26 of 42 Kumar Bansal and Rakesh Kumar Bansal in lieu of providing facilities to them permitting STD/ISD calls which they used to their benefit by according conference facility to their customers. During course of his submissions, Ld. PP for also placed reliance on State Vs. Navjyot Sandhu (2005) Crl. L.J. (3950) in support of his submission that joint disclosure of two accused persons which leads to discovery of fact is not precluded from law. It was submitted that it had been observed by Hon'ble Supreme Court of India that such like joint or simultaneous disclosures were not inadmissible U/s. 27 of the Indian Evidence Act. As per ld. PP, Harnam Dass was the kingpin of the scandal amongst the officials of MTNl and had carried out the entire operation in conspiracy with his other oc-accused Satish Kumar, Kaushal Kumar & Raj Kishan whom he had specifically named in his disclosure statement. It was further submitted that the accused persons facing trial were Telgraph Officers within meaning of the Indian Telegraph Act and all accomplices had also committed offence punishable U/s. 27 of the Indian Telegraph Act. It was prayed that the accused persons be convicted and sentenced in accordance with law.

40 Ld. Counsel for accuseds Satish Kumar & Kaushal Kumar submitted that they were sought to be falsely implicated in the present case only on basis of an alleged disclosure statement made by other co-accused Harnam Dass. It was submitted by ld. Counsel that disclosure statement of co-accused was inadmissible against the others and as such no order of conviction could be passed against accuseds Saitsh Kumar and Kaushal Kumar as there was not even an iota of incriminating evidence against them except for the alleged disclosure statement of Harnam Dass. While referring to the evidence on record, it was submitted that as per allegations, accused Dinesh Kumar had tied up with one Anil Kumar Singh for allegedly running a parallel Telephone Exchange. It was submitted CC No. 20/2010 Page27 of 42 that no Anil Kumar Singh had been made an accused in this matter and rather false case had been made out by accused Harnam Dass by alleging that he was Harnam Dass @ Anil Kumar Singh. As per ld. Counsel, Harnam Dass was allegedly identified by Dinesh Kumar on basis of photograph on the Identify Card Register which reportedly had been produced by officials of Shakti Nagar Telephone Exchange. It was claimed neither the said photograph nor the Register was seized during course of investigation nor the same was put up for judicial scrutiny during the course of trial. It was further submitted that the disclosure statement / Pointing Out Memo Ex.PW-4/A left much to be desired. While placing reliance on 2010 Crl.LJ. 635 (Malkiyat Singh & Anr. Vs. State), it was submitted by ld. Counsel that none of the witnesses examined had repeated the words allegedly spoken by Harnam Dass during course of his alleged disclosure statement. As per ld. Counsel, mere exhibiting of the disclosure statement in absence of those words having been repeated by the witness made it inadmissible U/s. 27 Evidence Act. While referring to the Pointing Out Memo, it was further submitted that the same referred to accused Harnam Dass as well as Satish Kumar but it was not clear as to who had pointed out the incriminating material, as the word used was 'He'. While referring to testimonies of PW-4 & 5, it was submitted that they had not identified accused Harnam Dass or Satish Kumar in Court and it was submitted that accused Kaushal Kumar was not even present in the Exchange at the time of raid. As per ld. Counsel, the accused had been falsely implicated.

41 Ld. Counsel for accused Harnam Dass submitted that there was nothing on record to show that any of the accused had caused wrongful gain to himself or wrongful loss to the Exchange. It was submitted that prosecution has failed to show any agreement between the parties regarding their having entered into a conspiracy CC No. 20/2010 Page28 of 42 to commit the alleged act. Ld. Counsel further submitted that the alleged exporters who were projecting as being the persons for whose benefit the parallel Exchange was being run were neither cited nor examined in the present case. Another point of argument advanced by ld. Counsel was to the effect that the case property of this case and the alleged instruments used for running the parallel Telephone Exchange were never shown to prosecution witnesses during course of trial and had not been exhibited during course of trial. It was also pointed out that as per allegations, the connections at Shakti Nagar Telephone Exchange had been tampered with so as to by pass the metering equipment. Ld. Counsel submitted that neither the said equipments were seized nor photographs of the spot taken to fortifie claim of the prosecution. The main line of argument advanced was to the effect that the accused running a parallel Telephone Exchange at Ashok Vihar was not proved by the prosecution, no case was made out against Harnam Dass for having entered into conspiracy with the other co-accused persons. While referring to the Sanction Order, it was pointed out that complete facts had not been brought to the knowledge of the Sanctioning Authority or atleast were not mentioned in the Sanction Order as it did not mention the name of Anil Kumar Singh / A.K. Singh at any place whatsoever. Ld. Counsel further submitted that the only allegation on record against accused Harnam Dass was the alleged disclosure statement of co-accused Dinesh Kumar Bansal and that the same was insufficient to convict the accused Harnam Dass. Ld. Counsel further submitted that there were material contradictions in testimonies of the prosecution witnesses in as much as PW-1 & PW-3 had claimed that the door had been broken open while PW-14 claimed that it was forcibly opened by CBI while PW-24 claimed that it was broken.. It was further submitted that PW-26 Shri Vijay had claimed having gone to House No. 49-A while PW-24 S.K. Peshin CC No. 20/2010 Page29 of 42 claimed that Vijay had gone with him to House No. H-12, Ashok Vihar. It was also submitted that the accused persons who had pleaded guilty were not jointly tried with the accused persons now facing trial and as such, their confessions could not be taken into consideration.

45 The other objection raised on behalf of the defence was to the effect that the telephone number to which ISD Call had been made during course of investigation had not been disclosed. Infact, PW-23 during course of his testimony has mentioned the said telephone number and thereby laying to rest the said argument.

46 No doubt, investigation in the present matter appears to have left much to be desired. This court has no hesitation in putting on record the fact that the investigating agency / investigating officers have not investigated the case properly. Details in respect of the beneficiaries i.e. the exporters who were using the parallel telephone exchange or that of the parties to whom ISD/STD calls CC No. 20/2010 Page31 of 42 were made were never called upon to join investigation and rather no effort appears to have been made by the investigating officers to ascertain their identities. There is apparent lack of effort on part of the investigating agency to ascertain the amount of loss to the Government Exchequer and the probable benefit to the accused persons who were running the parallel exchange. But then, faults on part of the investigating officer or investigating agency do not go to benefit of the accused if the material on record is enough to prove their culpability. It is settled principle of law that defence cannot take benefit of fault of the investigating officer. In State of MP Vs. Hari Mohan (AIR 2001 SC 142) it had been observed that a defective investigation cannot be a basis for acquitting the accused if a case was made out against the accused despite such defects and failure) 47 As regards submission made by Ld. Counsel for the accused regarding inadmissibility of joint disclosure allegedly made by accused Harnam Dass and Satish Kumar, it would be pertinent to mention that in State Vs Navjot Sandhu (2005 Crl. LJ Page 3950) it had been observed that joint disclosures or simultaneous disclosures per se were not inadmissible U/s 27 Arms Act. Similar observation was made when it was observed in Bali @ Balmiki and Another Vs. State of MP [1989 (3) Crimes Page 721] that it had been held in State Government of MP Vs. Chottey Lal Mohan Lal (AIR 1955 Nagpur Page 71) that simultaneous statements made by accused persons are not per se inadmissible in evidence and are liable to be considered if the discovery made in consequence thereof affords guarantee about the truth of the statements. A perusal of the alleged disclosure statement in question would throw much light on the point in issue. The document in question (D-10) is the pointing out memo which during trial had been proved as Ex. PW-4/A. A close perusal of this document goes to show that besides being the CC No. 20/2010 Page32 of 42 pointing out memo, it also contains what had been disclosed by accused Harnam Dass during course of his interrogation. The pointing out, as mentioned in the memo had been done by Harnam Dass and Satish Kumar, but the disclosure portion is only of Harnam Dass. In that view of the matter, it cannot be said that present is a case of joint disclosure of two accused persons namely Harnam Das and Satish Kumar. Rather, it is a simple case of disclosure made by Harnam Dass alone and thereafter joint pointing out by Harnam Dass and Satish Kumar. Significantly, as Satish Kumar had allegedly not made any disclosure statement to the CBI, his mere pointing out the unauthorized telehone connections cannot be said to be "a fact discovered" in consequence of the disclosure made. That leaves us with only the disclosure made by accused Harnam Dass and "fact discovered" subsequent thereto i.e. the points where the telephone connections had been tampered with so as to permit STD/ISD calls being made without any billing.