Rama Vs State by Cbi/ Spe

THIS CRL.A IS FILED UNDER SECTION 378(4) CR.P.C PRAYING TO SET ASIDE THE ORDER DATED:8.8.11 PASSED BY THE XLVI ADDL. CITY CIVIL AD S.J., AND SPL. JUDGE FOR CBI CASES, BANGALORE CITY IN SPL.C.C.NO.93/06 - CONVICTING TH APPELLANT/ACCUSED FOR THE OFFENCE P/U/S 420 IPC AND 13(2) R/W 13(1)(d) OF PREVENTION OF CORRUPTION ACT AND SEC.25(c) OF THE INDIAN TELEGRAPH ACT, 1885.

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THIS APPEAL, COMING ON FOR DICTATING JUDGMENT, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Appellant is the accused who suffered an order of conviction in Spl.C.C.No.93/2006 dated 08.08.2011 on the file of the XLVI Additional City Civil and Sessions Judge and Special Judge for CBI Cases, Bengaluru City (CCH-47).

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Facts of the case in a nutshell that are essential for disposal of the present Criminal Appeal are as under:

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The Inspector of Police, Central Bureau of Investigation/ ACB filed the charge sheet against the appellant for the offence punishable under Section 420 of the Indian Penal Code, Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and Section 25(c) of the Indian Telegraph Act, 1885 alleging that accused while discharging the function of a public servant in the capacity of a Regular Mazdoor in the office of Central Telephone Exchange, Outdoor, Bengaluru, during the period from 10.04.1997 to 27.08.1998, to derive undue pecuniary advantage by abusing his official position illegally tampered with the telephone lines bearing Nos.2205209, 2257136 and 2257138 which were legally connected to Hotel Atria, diverted the telephone lines and unauthorizedly used the

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diverted lines for extending ISD/STD facilities to different customers and in all caused wrongful loss to the tune of Rs.18,36,877/- to the Telecom Department.

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The Charge Sheet came to be filed after detailed investigation pursuant to the source information received by the Central Bureau of Investigation.

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The charge sheet material would disclose that the aforesaid telephone lines were legally connected to Hotel Atria and when bills received by Hotel Atria, they noticed irregular reading with regard to the usage of aforementioned telephone lines. Therefore, they sent a letter to the Telecom Department stating that they have not made so much of telephone calls and there is wrong billing.

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The matter was then enquired into by the Telecom Department and thereafter fraud committed by the appellant came to light and therefore, charge sheet came to be filed.

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After receipt of the charge sheet, learned Special Judge secured the presence of the accused and after compliance of

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Section 207 of the Code of Criminal Procedure, framed the Charges for the aforesaid offences. Accused pleaded not guilty and therefore, trial was held.

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In order to bring home the guilt of the accused, prosecution in all examined 18 witnesses and placed on record as many as 66 documents which were exhibited and marked as Exs.P.1 to P.66. Prosecution also placed on record the telephone handsets that were given to the appellant through the Department as M.Os.1 and 2.

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On conclusion of recording of evidence, accused statement as is contemplated under Section 313 of the Code of Criminal Procedure was recorded wherein accused has denied the incriminatory circumstances.

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Accused also got examined one person by name Sri Radha Krishna Rao, security personnel of NIIT as D.W.1.

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Later on, learned Special Judge heard the parties in detail and on cumulative consideration of the oral and documentary evidence placed on record, convicted the accused for the aforesaid offences and sentenced as under:

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“The accused who is convicted for the offence punishable u/s 420 IPC is sentenced to undergo Simple Imprisonment for one year and to pay a fine of Rs.50,000/(Rupees Fifty Thousand only) and in default to pay fine amount, to undergo Imprisonment for a period of three months.

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The accused who is convicted for the offence punishable u/s 13(2) r/w Sec13(1)(d) of Prevention of Corruption Act is sentenced to undergo Simple Imprisonment for two years and to pay a fine of Rs.1,00,000/- -(Rupees One Lakh only) and in default to pay fine amount, to undergo Simple Imprisonment for six months.

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The accused who is convicted for the offence punishable u/s 25(c) of the Indian Telegraph Act, 1885 and he is sentenced to undergo Simple Imprisonment for one year.

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All the sentences shall run concurrently.”

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Being aggrieved by the same, appellant/accused is before

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this Court in this Criminal Appeal.

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Sri Vinay, advocate representing Sri P.N.Manmohan, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, vehemently contended that in the case on hand, absolutely there is no material to assess what

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exactly is the loss that has been caused to the Telecom Department, that too, to the tune of Rs.18,36,877/- and based on the oral testimony of prosecution witnesses such a loss cannot be ascertained, inasmuch as there is no documentary evidence placed on record as to how many STD and ISD calls have been made with the aid of the aforesaid telephone numbers resulting in pecuniary loss to the Telecom Department.

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He also pointed out that mere lodging of the complaint by Hotel Atria that there is excess metre reading would not ipso facto result in the fact that appellant is responsible for the alleged offences and thus sought for allowing the appeal.

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He further pointed out that at the most, the material on record may only establish the fact that in tower which has been established in the compound of NIIT where telephone lines of Atria Hotel are connected is tampered is what is being established before the Court and the pecuniary loss and official position of the appellant having been misused for the pecuniary gain is not established by placing cogent and convincing evidence on record and thus sought for allowing the appeal.

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He also pointed out that the prosecution case is banked on the oral testimony of P.Ws.14 to 16. He points out that the oral testimony, if construed in cumulative manner, P.Ws.14 to 16 are also accomplice in the crime. Their testimony, therefore, cannot be banked upon by the learned Special Judge for the purpose of convicting the accused especially for the offence punishable under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and in the event this Court upholding that there is pecuniary loss caused to the Telecom Department, the conviction for the IPC offence can be maintained by setting aside the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sought for allowing the appeal to that extent.

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He also contended that prosecution evidence is hardly sufficient to maintain conviction under Section 25(c) of the Indian Telegraph Act, 1885.

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Per contra, Sri P. Prasanna Kumar, learned counsel representing the CBI supports the impugned judgment in toto .

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He further pointed out that based on the source information, FIR came to be registered and after thorough investigation, material has been collected by the Investigation Agency whereby it is clear that the appellant being the regular Mazdor of outdoor unit, Central Telephone Exchange, was incharge of pillar No.70 which was installed in the NIIT compound where the telephone lines of Atria Hotel are connected is meddled by the appellant as the key for opening the doors of the said pillar was exclusively in the possession of the appellant.

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He further pointed out that evidence of Sri Radha Krishna

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Rao examined as D.W.1 would go to show that there was yet another employee who was dealing with the complaints in pillar No.70 and on the day of the incident when he assumed the duty he saw some other employee by name Ramesh was running away from the pillar seeing D.W.1 which is highly imaginary in nature and looks artificial. Therefore, learned Special Judge has rightly convicted the appellant for the aforesaid offences and sought for dismissal of the appeal.

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Insofar as the alternate submission also concerned, Sri

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Prasanna Kumar contended that if this Court accepts the submission made on behalf of the appellant and acquits the appellant for the offence under Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, there is possibility of appellant claiming the pecuniary benefit as well by challenging his dismissal and thus sought for dismissal of the appeal in toto .

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In reply, Sri Vinay, learned counsel for the appellant, to quell such an apprehension on behalf the prosecution, files an affidavit which reads as under:

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“I, Rama, S/o Narayana @ Ramesh, aged 73 years, R/a Aikya, No.51/2, Ganapathi Nagar, Acharya College Road, Chikkabanavara, Bengaluru do hereby solemnly affirm and state on oath as follows:

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1. I state that the above appeal is filed questioning the Judgment and Order dated 08.08.2011, passed in Spl. C.C.No.93/2006, passed by the Court of XLVI Additional City Civil and Sessions Judge and Special Judge for CBI cases at Bengaluru.

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2. I state that if this Hon’ble Court comes to a conclusion that I have not committed the offence for which I am convicted by the Special Judge, I undertake not to claim any service benefits including reinstatement,

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backwages, retirement benefits and or any other benefits from my erstwhile employer i.e. B.S.N.L I further state that I undertake to abide by my aforesaid undertaking and this affidavit is filed as an alternative prayer to this Hon’ble Court. This affidavit may be taken on record, in the interest of justice.”

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In the light of the above factual aspects and rival contentions of the parties, this Court perused the material on record meticulously.

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On such perusal of the material on record, the following points would arise for consideration.

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(i) Whether the material evidence placed on record would be sufficient enough to maintain the conviction of the appellant for the offence punishable under Section 420 of the Indian Penal Code, Sections 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and Section 25(c) of the Indian Telegraph Act, 1885?

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(ii) Whether the appellant makes out a case of legal infirmity and perversity in the findings recorded by the learned Special Judge while convicting the appellant for the aforesaid offences?

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(iii) Whether the sentence needs modification?

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(iv) What Order?

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REGARDING POINT Nos.1 AND 2: In the case on hand,

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there is no dispute that appellant was appointed as regular

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Mazdor in the outdoor unit of Central Telephone Exchange and he was in-charge of pillar No.70 which was installed in the compound of NIIT whereunder telephone lines of Hotel Atria bearing Nos.2205209, 2257136 and 2257138 were connected.

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Admittedly, Hotel Atria failed to make the payment in respect of those telephones when there was excess metre reading. Officials of Atria Hotel have written letter to the Telephone Department stating that the customers have not used those telephone lines to make STD or ISD calls, but metre has run in those telephone lines whereby it has been billed with STD and ISD charges and therefore, there was suspicion with regard to improper usage of those telephone numbers.

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Letter written by Hotel Atria would also include that on the dates when the rooms were kept vacant, there was billing from those telephone lines which created suspicion as to the meddling with the aforesaid telephone lines of Atria Hotel. It is then the source information was recorded by CBI based on the oral complaint lodged by the Telecom authorities.

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On enquiry and on investigation, it was found that it was the appellant who was meddling with pillar No.70 with the help of his hand set.

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In this regard, oral evidence of P.Ws.14 to 16 assumes importance. All of them have stated that their relatives were abroad and appellant had approached them and made an offer that they can make use of STD and ISD at a concession rate by calling his number which were the numbers of his handset, marked at M.Os.1 and 2.

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P.Ws.14 to 16 accepted the offer with a discount of 10% in the total bill. Likewise, whenever they wanted to make call to their relatives outsides Bengaluru and abroad in the form of STD and ISD, they were calling the number of the appellant’s hand set marked at M.Os.1 and 2 and appellant used to be present near the pillar and make use of his hand set and then connect to the telephone lines belonging to Atria Hotel by looping the lines and billing would only take place to the Atria Hotel and not to the concerned party or to the hand set of the appellant and thereby there was pecuniary loss caused to the

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Telephone Department and pecuniary gain to the appellant as well as P.Ws.14 to 16.

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From the above evidence and other documentary evidence placed on record, it is crystal clear that there was tampering of the telephone lines belonging to the Atria Hotel by the appellant by misusing his official position and also the official handset marked at M.Os.1 and 2 for connecting the Atria Hotel telephones to the intended numbers for which P.Ws.14 to 16 wanted to make STD calls and thereby fraud has been established by the prosecution by placing cogent and convincing evidence on record.

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However, for establishing the misuse of official position and actually having pecuniary gain, there is no material placed on record, except the oral testimony of P.Ws.14 to 16.

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The Investigation Agency ought to have collected what exactly is the excess metre reading in respect of those three telephone lines and what are the telephone lines for which the Atria Hotel has collected money from its customers and what

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exactly is the amount that they have not paid in respect of those telephone numbers.

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Under such circumstances, what is the exact pecuniary loss that has been caused to Telephone Department is not forthcoming though it has been alleged that there is loss to the tune of Rs.18,36,817/-. As rightly contended by learned counsel for the appellant, P.Ws.14 to 16 being accomplice in the very same crime, they have been only cited as witnesses.

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In the absence of any clinching material to attract the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, appellant is entitled for an order of acquittal on those grounds.

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So also, for establishing the offence under Section 25(c) of the Telegraph Act, 1885, no proper material are forthcoming on record, inasmuch as, it is only confession statement of the appellant which has been relied on by the prosecution agency and no further material evidence is placed on record. Accordingly, appellant is entitled for an order of acquittal for the offence under Section 25(c) of the Telegraphic Act, 1885.

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36. Accordingly, point Nos.1 and 2 are answered partly in the affirmative .

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REGARDING POINT No.3: Having recorded the finding on point Nos.1 and 2 partly in the affirmative and setting aside the conviction of the appellant for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, and under Section 25(c) of the Indian Telegraph Act, the apprehension expressed by the prosecution that the appellant would claim the pensionary benefit and other consequential benefits on account of acquittal for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the P.C.Act, stands quelled by virtue of the affidavit filed by the appellant as referred to supra.

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Therefore, the compulsory imprisonment period ordered for the appellant in the impugned judgment to the extent of one year which is the minimum punishment that has been prescribed under the provisions of the P.C. Act and imprisonment period of one year for the offence under Section 25(c) of the Indian Telegraph Act needs to be set-aside by

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enhancing the fine amount reasonably. Accordingly, fine is enhanced to Rs.1,00,000/- as there is an acquittal for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act and under Section 25(c) of the Indian Telegraph Act.

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39. REGARDING POINT No.4: In view of the finding of this

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Court on point Nos.1 to 3 as above, the following:

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ORDER

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(i) The Criminal Appeal is allowed in part .

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(ii) While maintaining the conviction of the appellant for the offence punishable under Section 420 of the Indian Penal Code, conviction of the appellant for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the P.C.Act and Section 25(c) of the Indian Telegraph Act, 1885, is hereby set-aside .

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(iii) Consequently, jail period ordered for the offence punishable under Section 13(1)(d) r/w Section 13(2) of the P.C.Act and Section 25(c) of the Telegraphic Act, is hereby set-aside and for the offence punishable under Section 420 of the Indian Penal Code, fine amount is enhanced by

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a sum of Rs.1,00,000/-,(plus Rs.50,000/ordered by the learned Special Judge, in all, sum of Rs.1,50,000/-) payable by the appellant on or before 28^th February 2025, failing which, appellant shall undergo simple imprisonment for a period of one year.

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(iv) Office is directed to return the Trial Court Records along with copy of this Order forthwith, for issuance of modified conviction warrant.

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Sd/(V SRISHANANDA) JUDGE

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kcm List No.: 2 Sl No.: 3

Rama v. State by Cbi/ Spe

Case brief

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Rama v. State by Cbi/ Spe

Case brief

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