Partly allowed

S.Upendra Radha Krishna Murthy and Another, v. the State of a.P., Rep by Spl.Pp.

Telangana HC6 Sept 2024CRLRC/1803/2009

Case brief

AI extract

What is this about?

In a criminal revision, the High Court upheld the convictions of the appellants for cheating and conspiracy related to an illegal telecom network. The Court held that the sentences were reduced to one year due to the age of the accused.

What did the court decide?

Sentence reduced to one year imprisonment for both appellants. Accused directed to appear and serve remaining sentence.

S.Upendra Radha Krishna Murthy and Another, Vs the… — Cheating and Forgery | Telangana HC (2024)

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BAIL SLIP : The Petitioner/ Accused was directed to be released on bail by the order of the High Court dated.28-1O-2AO9 in Crl.R.C.lvl.P.No.2507 of 20Og in Crl.R.C. No.1B03 of 2009.

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IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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FRIDAY, THE SIXTH DAY OF SEPTEMBER TWO THOUSAND AND TWENTYFOUR

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PRESENT

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THE HONOURABLE SRI JUSTICE K.SURENDER

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CRIMINAL REVISION CASE NO: 1803 Of 2009

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Criminal Revision Case filed under Section 397 and 401 of Cr.PC against the Judgment dated 26.10.2009 made in Crl.A.No.1S of 2008 on the file of the Court of the I Additional Metropolitan Sessions Judge, Hyderabad preferred against the Judgrnent dated 08-O1-2008 made in C.C.No.158 of 200'l on the file of the Court of the XIV Additional Chief Metropolitan Magistrate, Hyderabad.

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Between:

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S.Upendra Radha Krishna Murthy S/o. S.V-Raghavendra Rao, Occ: Retd Private Employee, R./o. 1st Floor, 46/3 RT, Vijayanagar Colony, Hyderabad.

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P.D. Thilak,, S/o. P.S.V.Roa, Occ: Retd Private Employee, R/o.46/3, RT, ll Floor, Vijayanagar Colony, Hyderabad.

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...Petitioners/Accused No.1 &2

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AND

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Tfre State of A.P., lnspector of Police, Central Bureau lnvestigation, Rep by the Spl Public Prosecutor, High Court of A.P., High Court Buildings, Hyderabad.

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...RespondenUComplainant

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Counsel for the Petitioners : Sri Mahesh Raje

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Counsel for the Respondent : Sri Srinivas Kapatia (SPL PP FOR CBI)

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The Court made the following: ORDER

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THE HON'BLE SRI JUSTICE K.SURENDER

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CRIMI NAL REVISION CASE No.1EO3 ol 2OO9

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ORDER:

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The revision^{petitioners/A1 and A2 were convicted under} Section l2O-B^r I w^{42O IPC vide judgment in C.C.No. 158 of 20O 1} dated 08.01.2008^passed by the XIV^{AdditionalChief} Metropolitan Magistrate at Hyderabad. The said^{conviction was} conlirmed by the I Additional Metropolitan Sessions^Judge, Hyderabad vide^jrrdgment in Criminal Appeal Nos.15/20O8 dated26.10.2009

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The case of the prosecution is that tl"e Department of Telecom received multiple complaints from subscribers regarding poor call qualitl, and frequent internrptions, especially during international calls. Investigations revealed that these issues were linked to international ca-lls being received from local numbers These local numbers were traced to a Iirm run by A1 and 42.

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On August 5, 2000, a^joint surprise check was conducted^at the premises of M/s Supra Online Data Services^{(F1at No.} 603)^by ofhcials from the CBI, BSNL's vigilance department, and other telecom ofhcials. The operation revealed illegal installation of 24 ISDN lines and related multiplexing equipment (MOs 1 to 1O) The case u,as registered on August 8, 2000, based on a r.vritten

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complaint (F;x.P22l hied by PWS, the^{AssistantGeneralManager} of BSNL.s technical wing. Following the^{investigation, the CBI} f,rled a charge sheet against the accused.

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It is the case of the prosecution that^{the accused/Al,A2,} A4, and A5 conspired to operate an^{illegaltelecommunication} network through their firm, M/s Supra^{Online Data Services,} causing a linancial loss of t1,65,51,360 to^{the Governmentof} India. Al and A2 forged signatures to create^{a partnership deed} (Ex,P40) for the hrm, through which they rerouted^{international} calls to local Hyderabad numbers using^{12 ISDN lines. This} operation involved the use of specialized^{equipmentthat} converted and split international calls^{into multipleloca1circuits,} allowing tp to 24 calls to be switched simultaneously,^thereby bypassing the legal international call^{processing via VSNL.}

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It is further the cas€ of the^{prosecution that 44 was} responsible for installing key telecom^{equipmentin Hyderabad,} facilitating the illegal routing of calls, while^{A5 employed} compression techniques to transmit multiple calls simultaneously. These actions resulted^{insignihcant revenue} losses for the government and licensed telecom^{operators, as the} accused did not pay the required^{license fees or taxes According}

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to prosecution, tht: illegal network, which include hubs both in India and abroad, was used to sell^prepaid calling^{cards, leading} to unaccounted c:all traffrc.^{This posed substantial risks to} national securitv,^as the unregulated^{traff,rc could be exploited by} criminals, making it difhcult for law enforcement to monitor and track these calls.

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The trial Court examined P.Ws.l to 25 and marked Exs.Pl to P43 on behalf of the prosecution and M.Os.l to 11 were brought on record. On behalf of the defence, D.W. 1 was examined.

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P.W.8/Assistant General MarlAger, BSNL filed initial complaint after rer:eiving numerous reports of poor call quality. This complaint led to the involvement of the CBI and the subsequent raid on A1 and A2's frrm. P.W.2O/Deput5r General Manager, BSNL, rvho participated in the raid, confirmed the presence of ISDN lines and multiplexing equipment at the hrm. He corroborated P.W.8's evidence regarding poor call quality and the appearance of local numbers on caller IDs during international calls.

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P.W.2U Senior Malager, VSNL/Deputy General Manager, BSNL, took part in the surprise check, veriffing that VSNL was

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the only authorized agency for international calls. He confirrned the discovery of illegal equipment at A1 and A2's premises.

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P.W.23/Assistant Director, BSNL acted as a mediator during the raid prepared a layout diagram (Ex.P23) and proceedings Ex.P4. He conhrmed the seizure of equipment (MOs 1 to 11). P.W.3/LDC in Registrar of Companies, acted as independent witness during the search and seizure operations. PW18/Inspector.of Police, CBI, part of the team conducting the ratd. P.W.24/Sub-Inspector of Police, CBI, investigating officer who took over investigation after the case was registered.

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These witnesses were present during the joint surprise check conducted on August 5, 2OOO, and collectively supported the prosecution's case. They provided consistent testimony regarding the service of the seizure memo (E;xP24l, the conduct of the search, and the seizure of equipment (MOs 1 to 11) under ExP4, supported by diagrams (ExP3 and ExP23) and photographs (ExPl and ExP2). The prosecution relied on this evidence, including the panchanama (ExP4), diagrams (ExP3 and Exp23), and photographs (ExPl and ExY2l, to establish the surprise check and seizure of equipment at the scene of the offense. All

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tnesses consisterLtly testified in support of the pr<>secution,s case without material contradictions.

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The main contention of accused was that the prosecution failed to establish. a connection between the accused and the lirm involved in.the alleged illegal activities. However, both Courts below found that the prosecution had clearly demonstrated ,4.1 and A2's roles in the firm. This included: a) Securing tJre premises on lease; b) Opening and operating bank accounts; c) Purchasing equipment; d) Obtaining 14 ISDN lines from Tata Teleserrices usin51 frLnds flrom the hrm's account.

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Courts further found that the defense did not dispute the legality or licensing of the business. Furthermore, during tJre year 2OOO, only VSNL wzrs authorized by the Government of India to handle internationat calls, whether incoming or outgoing. The Courts below concluded that Al and ,A,2 were involved in operating an illegal telecom network, resulting in wrongful loss to the Government of India (VSNL and BSNL).

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The content.ion of counsel for A1 and .A2 is that the threeday delay between the surprise check on August S,2OOO, and the crrme registration on August B, 2OOO, adversely affected the

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prosecution's case. However, Court found that the delay did not cause prejudice to the accused. The delay was justified as: i) The complaint was filed by pWg after tlre joint surprise check conducted by CBI, BSNL, VSNL, and independent witnesses; ii) The check revea_led the illegal telecom network, leading to the subsequent investigation and charge sheet. The joint surprise check was valid and necessary for detecting the illegal network. The crime was registered based on the findings from this check, and the delay was not fatal to the prosecution,s case.

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L4. The accused case is that there was no direct evidence of arr agreement between Al and 42 to commit tJ:e crime of cheating. They claimed that the prosecution,s reliance on circumstantial evidence was insufficient, as the circumstances presented did not conclusively incriminate the accused or eliminate the possibility of their innocence. They emphasized that there was no materiar evidence to show any meeting or illegal agreement between A1 and A2 to operate the unauthorized telephone businessHowever, the Courts rejected this contention, emphasizing that conspiracy is often hatched in secrecy, making direct evidence difficult to obtain. The judge ruled that the prosecution had successfully proven the conspiracy through inferences drawn

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from the accused's actions and the illegal operation they conducted, thereb5, establishing the charges^{of conspiracy and} cheating against A1. and^A2

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Ex.P24 documented the seizure of^{12 items from A,2 on} 8.8.2000 by TSC Bose, DSP, CBI, in the^presence of PW3 and PW8. Ex.P4 was the only record of proceedings from the surprise check conducted on 5.8.2000 by PW18, Dpt SIP, CBI, with PWs 3 and 8 present. P'frI3 and PW8 did not specifically mention ttre seizure date in their chief examinations but indicated that MOs¹ to 1O were found during the surprise check on 5.8.2OO0. Although PW8 provided evidence that the CBI dismantled the seized items, he did not specify the exact date of seizure.

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MOs 1 to 10 were seized under ExP24 on 8.8.2000, after the case was registered and the FIR was issued. Despite the irregularity in not recording the information as a GD entry before the joint surprise check, it did not constitute an illegality. The admissibility of thr: seized evidence is based on Supreme Court decisions and the appellalts' contention regarding procedural violations is unfounded.

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In Amit Kapoor v. Ramesh Chander(AlR Online 2Ol2 SC 668), the Honble Supreme Court held that Section 397 of the

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Code vests the court with the power to call for and examine the records of an inferior court for the purposes of satis$ring itself as to the legality and regularify of any proceedings or order made in a case. The object of this provision is to set right a patent defect or an error of jurisdiction or law. There has to be a well-founded error arld it may not be appropriate for the Court to scrutinize the orders, which upon the face of it bears a token of careful consideration and appear to be in accordance with law. If one looks into the various judgments of this court, it emerges that the revisional jurisdiction can be invoked where the decisions under challenge are grossly erroneous, there is no compliance with the provisions of law, the finding recorded is based on ao evidence, material evidence is ignored or judiciat discretion is exercised arbitrarily or perversely. These are not exhaustive classes, but are merely indicative. Each case would have to be determined on its own merits

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i8. In Krishnan & another v. Krishnaveni & another (AIR 1997 Supreme Court 987 ll997l, the Honble Supreme Court held that exercises of the revisional power by the high court under Section 397 read with Section 401 is to ca]l forthe records of any inferior Criminal Court and to examine the correctness,

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legality or proprieQz of any hnding, sentence or order recorded or passed, and as to the regularity of any proceedings of such inferior Court and to pass appropriate orders. The Court of Sessions and the Magistrates are inferior criminal couts to the High Court and Courts of^judicial Magistrate are inferior criminal courts to the Sessions^judge. Ordinarily, in the matter of exercise of power of revision by any High Court, Section 397 and Section 4Ol are required to be read together. Section 397 gives powers to the High Court to call for the records as also suo m,otu power under Section 40 1 to exercise the revisional powr:r on the grounds mentioned therein, i.e., to examine the correctness, legality or propriety of any finding sentence or order, recorded or passed and as to the regularity of any proceedings of such inferior court and to dispose of the revision in the ma-nner indicated under Section 4Ol of the Code.

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The revisional power of the High Court merely conserves the power of the High Court to see that justice is done in accordance with the recognized rules of criminal jurisprudence and that its subordinates courts do not exceed the jurisdiction or abuse the power vested in them under the code or to prevent abuse of the

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process of ttre inferior criminal courts or^{to prevent miscarriageof} justice.

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l,earned counsel appearing^for the revision

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petitioners / accused once again raised very^{same grounds which} were addressed by the trial Court^{regarding the surprise check} being on O5.O8.2OOO without^{there beingregistration of crirne.} Further, learned counsel argued^{regarding prosecutionnot being} able to prove the case that Aland^{A2 were in fact runningthe} premises. As already discussed above, the^{securingof tJle} premises on lease, opening and operating bank^accounts, purchasing equipment and obtaining 14^{ISDN lines from Tata} Teleseruices using funds from the^{lirm's accountclearly} established by the prosecution.

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2t. Unless there are compelling^{reasons such as the Courts} below deciding the case not^{on the basis of any evidencebefore} the Court or not considering any^{admissibleevidence, only under} such circumstances, this Court^{can go into reassessment of} facts.

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As already discussed, both the Courts below have given reasonable and adequate reasons for negativing the grounds raised by the accused. The very sarne grounds are raised before this Court. I do not hnd any infrrmity with the hndings of the Courts below.

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However, keeping in view that the age of the a<:cused, the sentence of imprisonment is reduced to one year under section l2OB r/w Section 42O lPC.

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The trial Court is directed to cause the appearernce of the accused/Al and A2 and send them to prison to serve out the remaining period of sentence. The remald period, if any, shall be given set off under Section 428 Cr.p.C.

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