Delhi High Court
Diwan Chand Pruthi vs Cbi on 26 February, 2016
Author: Vipin Sanghi
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment reserved on: 09.02.2015
% Judgment delivered on: 26.02.2016
+ CRL.A. 436/2008
DIWAN CHAND PRUTHI ..... Appellant
Through: Mr. Sandeep Sethi, Senior Advocate
along with Mr. Manish Vashisht,
Mr.Sameer Vashisht & Ms. Reena
Yadav, Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. K. Raghavacharyulu and
Ms.Arunima Pal, Advocates.
AND
+ CRL.A. 446/2008
LALA RAM ..... Appellant
Through: Mr. Mukul Gupta, Senior Advocate
along with Mr. Vibhor Garg,
Mr.Tanmay Mehta & Mr. Sumit
Kumar Mishra, Advocates.
versus
C.B.I. ..... Respondent
Through: Mr. K. Raghavacharyulu and
Ms.Arunima Pal, Advocates.
AND
CRL.A. Nos.436/2008, 446/2008 & 453/2008 Page 1 of 66
+ CRL.A. 453/2008
BHAG CHAND ..... Appellant
Through: Mr. Ashok Mathur, Advocate.
versus
C.B.I. ..... Respondent
Through: Mr. K. Raghavacharyulu and
Ms.Arunima Pal, Advocates.
CORAM:
HON'BLE MR. JUSTICE VIPIN SANGHI
JUDGMENT
VIPIN SANGHI, J.
1. The present appeals are directed against the common judgment dated
21.04.2008 passed by Sh. Vinod Goel, Special Judge, C.B.I. in C.C. No.
122/99 (RC No. 54 (A)/95-DLI), wherein the three appellants were
convicted of the offences under Section 120-B Indian Penal Code ('IPC' for
short) read with Section 13(1)(d) and Section 13(2) of the Prevention of
Corruption Act, 1988 ('PC Act' for short). Appellant Lala Ram was also
convicted under Section 13(1)(d) read with Section 13(2) of the PC Act.
Vide order on sentence dated 26.04.2008, Appellant Lala Ram was directed
to undergo rigorous imprisonment for a period of three years and to pay fine
of Rs. 15,000/- and in default thereof, to undergo simple imprisonment for a
period of seven days for offence punishable under Section 120-B IPC. He
was further directed to undergo rigorous imprisonment for a period of three
years and to pay fine of Rs. 15,000/- and in default thereof, to undergo
simple imprisonment for a period of seven days, for offence punishable
under Section 13(2) of the Act. Both the sentences were directed to run
concurrently for Appellant Lala Ram.
2. Appellant Diwan Chand Pruthi was sentenced to three years rigorous
imprisonment for the offence punishable under Section 120-B IPC with a
fine of Rs. 15,000/- and in default of payment of fine, to undergo simple
imprisonment for seven days.
3. Appellant Bhag Chand was sentenced to rigorous imprisonment for
one year for the offence punishable under Section 120-B IPC with a fine of
Rs. 5,000/- and in default of payment of fine, to undergo simple
imprisonment for seven days.
4. The appellant Diwan Chand Pruthi is the Chairman, Cepham
Organics; appellant Lala Ram is a regular mazdoor in MTNL, MDF Kidwai
Bhawan, and appellant Bhag Chand is Office Assistant of Cepham Organics.
5. The charge-sheet in the present case arose out of FIR no. RC No. 54
(A)/95-DLI (Ex. PW4/G), registered on basis of a written complaint dated
30.06.1995 by Sh. Ved Prakash, Inspector, CBI, ACB-I, New Delhi (Ex.
PW4/H).
6. It was alleged that appellant Lala Ram in 1994 traced a spare
telephone line with STD/ISD facility in the MDF Room, and entered into a
criminal conspiracy with appellant Diwan Chand and appellant Bhag Chand,
by providing them an illegal telephone connection with ISD/STD facility. In
furtherance of this conspiracy, the said spare telephone number 3716165,
with STD/ISD facility, was diverted by appellant Lala Ram, on the
disconnected line of telephone number 3713201 of Cepham Organics. In
return, a payment of Rs. 25,000/- per month in two equal installments of
Rs.12,500/- on 10th and 25th day of every month was made to appellant Lala
Ram.
7. It is the case of the prosecution that - on 30.06.1995 a surprise
inspection was conducted by Sh. Ved Prakash, Inspector, CBI jointly with
MTNL Vigilance staff. Two separate teams, simultaneously, conducted an
inspection at the office of M/s Cepham Organics Pvt. Ltd. at Connaught
Place and Kidwai Bhawan, MTNL. It is alleged that at the time of the raid, a
telephone call was allegedly made by appellant Lala Ram from MDF,
Kidwai Bhawan Exchange, which was received by Shobha Dutta (PW16) -
a member of the raiding team. Appellant Lala Ram allegedly left a
telephonic message for appellant Bhag Chand to disconnect the telephone
line of number 3716165. The said telephone number 3716165 was misused
till the day of surprise check i.e. 30.06.1995. Due to the aforesaid
conspiracy, a wrongful loss of Rs. 24,92,695/- was caused to MNTL, and
wrongful gain was made by the appellants and the Cepham Organics. In
short, the allegation against the three appellants in the charge-sheet was that
in furtherance of a criminal conspiracy, Appellant Lala Ram diverted
telephone number 3716165 with STD/ISD facility to the disconnected
telephone number 3713201, installed at M-134, Connaught Place - office
premises of Cepham Organics Ltd, for a monthly payment of Rs. 25,000/-
made by Appellant Diwan Chand and Bhag Chand.
8. Following further investigation, a charge-sheet was filed alleging that
the accused persons had committed offences punishable under Sections 120-
B r/w 420 & 201 IPC and Sections 13(2) r/w 13 (1)(d) PC Act and Sections
25 and 27 of Telegraph Act. The charge-sheet was filed against 5 accused
persons. The competent authority accorded the sanction vide Ex. PW-2/A
dated 29.04.1997 for prosecution of Appellant Lala Ram - a public servant
working as a regular mazdoor at MTNL.
9. On 22.09.1997, the 5 accused persons were summoned by the Trial
Court. Thereafter, the Trial Court vide order dated 25.02.2000 discharged
accused no. 5 Samir Pruthi of the charges, and the Court framed charges
against the remaining four accused persons - Appellant Diwan Chand
Pruthi, Appellant Lala Ram, Appellant Bhag Chand and Kapil C. Bhasin.
The accused persons pleaded not guilty, and claimed for trial on 23.03.2000.
The accused no. 4, Kapil C. Bhasin, was discharged by this Court vide order
dated 10.10.2002.
10. The following witnesses were examined by the prosecution to
establish its case:
i. PW-1: Sh. S.L. Mukhi, Principal Scientific Officer, CFSL, New Delhi
ii. PW-2: Sh. D.P. Singh, Sub-Divisional Engineer (Admin.) Office of
Telecommunication, Chief General Manager, Kidwai Bhawan, New
Delhi
iii. PW-3: Sh. B.S. Rawat, Mining Foreman, DSIDC (Independent
Witness)
iv. PW-4: Sh. R.S. Tokas, Inspector, CISF, RAPS, Kota (Rajasthan)
v. PW-5: Sh. C.S. Rajwar, UDC, DGS&D, Parliament Street, New Delhi
(Independent Witness)
vi. PW-6: Sh. Azad Singh, Inspector, CBI, ACB, New Delhi
vii. PW-7: Sh. Pratap Singh Rawat, Security Officer, SPG (Independent
Witness)
viii. PW-8: Sh. Gajendra Sharma, Mining Foreman, DSIDC (Independent
Witness)
ix. PW-9: Sh. K.K. Nayyar, Assistant Vigilance Officer, MTNL
x. PW-10: Sh. S.C. Duggal, Sub Divisional Engineer, MTNL
xi. PW-11: Sh. D.K. Sharma, SDE, Office of GM (West-I), MTNL
xii. PW-12: Smt. Shashi Bajaj, employee of M/s. Cepham Organics Ltd.
xiii. PW-13: Sh. Krishan Kumar, AGM (Planning), MTNL
xiv. PW-14: Smt. Anuradha Diwan, employee of M/s. Cepham Organics
Ltd.
xv. PW-15: Ms. Rita Chopra, employee of Cepham Organics Ltd.
xvi. PW-16: Ms. Shobha Dutta, Inspector, CBI
xvii. PW-17: Sh. S.R. Singh, Inspector, CBI
xviii. PW-18: Sh. Devdutt Bansiwal, SDE, MTNL
xix. PW-19: Sh. Rajinder Kumar, SDO, Telephone
xx. PW-20: Sh. Ashok Kumar, Jt. Administrator(Technical), USO Fund,
Dot, New Delhi
xxi. PW-21: Sh. O.P. Midha, SDE, MTNL
xxii. PW-22: Sh. R.S. Yadav, JTO, MTNL
xxiii. PW-23: Sh. J.C. Sharma, AG-II, PA to DM, FCI
xxiv. PW-24: Sh. S.L. Khurana, AGM (Planning), Office of GM(Centre),
CGO Complex, New Delhi
xxv. PW-25: Sh. Subhash Chand Sharma, GM (Marketing), Nector Life
Science Ltd. Bombay
xxvi. PW-26: Sh. Tara Shah Sishodia, Sr. Telephone Operator
xxvii. PW-27: Sh. M.L. Kochhar, Divisional Engineer, MTNL
xxviii. PW-28: Sh. Jagpal Singh Dhaka, senior TOA, MTNL
xxix. PW-29: Sh. R.P. Pathak, Telephone Operator, Telephone Exchange,
Pitampura
xxx. PW-30: Sh. R.V.S. Lohmar, Inspector, CBI (IO)
11. The accused made their statements under Section 313 Cr.P.C. when
the entire case of the prosecution was put to them, including all the
incriminating evidence led by the prosecution. The accused No. 1 Lala Ram
in his statement under section 313 Cr.P.C. admitted that he was working as
Regular Mazdoor in MTNL during the period from December, 1994 to
30.6.1995. In his statement under section 313 Cr.P.C., the accused No. 2
Diwan Chand Pruthi admitted that during the period December, 1994 to
30.6.1995, he was the Chairman of M/s Cepham Organics Limited. The
accused No. 3 Bhag Chand in his statement under section 313 Cr.P.C.
admitted that during the period December, 1994 to 30.6.1995 he was
working as Office Assistant with M/s Cepham Organics Limited. Accused
No. 1 examined one DW Jaswant Singh on 6.9.2005. However, accused No.
2 Diwan Chand Pruthi did not examine any witness though availed several
opportunities and he closed his defence evidence on 19.12.2005. As noticed
above, all the appellants stand convicted by the Trial Court.
12. Mr. Mukul Gupta, Senior Advocate, advanced submissions for
appellant Lala Ram; Mr. Sandeep Sethi, Senior Advocate, for appellant
Diwan Chand Pruthi; and Mr. Ashok Mathur for appellant Bhag Chand.
While specific arguments have been advanced by learned senior counsels/
counsel in respect of the respective appellants for whom they appear, several
arguments advanced by the learned counsels are common. They have been
recorded accordingly.
13. Mr. Gupta, for appellant Lala Ram, submits that the appellant is only
a mazdoor in MTNL, and at the lowest rung in the hierarchy. He alone was
not competent to perform the alleged acts. Appellant Lala Ram is being
made a scapegoat as he is the only person from MTNL who was named an
accused in the present case.
14. Mr. Gupta further submits that PW-18, Sh. Devdutt Bansiwal, SDE,
FRS (retd.), MTNL in his testimony has explained the entire procedure for
opening, disconnecting and re-connecting a telephone line, disconnected on
account of non-payment of bills. The entire procedure requires involvement
of various officials of MTNL at different levels. Therefore, the appellant -
only a mazdoor, alone could not have performed the alleged acts. There is
no role of a regular mazdoor in the entire procedure of re-connecting a
telephone line. He further submits that PW-18 in his cross-examination
stated that a telephone line, which has been made non-functional on account
of permanent disconnection, can only be made operational from the Switch
Room, and not from MDF, and appellant Lala Ram was working as a regular
mazdoor at MDF.
15. Mr. Gupta submits that PW-21 O.P. Midha deposed regarding the
procedure for installing STD/ISD facility on a telephone connection. PW-21
stated that "After applying for STD/ISD facility on a new connection,
verification of premises is done by Field staff..... It is correct that
installation work is done in the premises by the Line man". He submits that
from the statement of PW-21, no role is ascribed to a mazdoor for installing
STD/ISD facility. Further, PW-2, Sh. D.P. Singh deposed that "The duties of
regular mazdoor are quite wide (sic) such as bringing files, assisting the
technical persons, and he does all the work assigned to him by his superior
officer". Mr. Gupta submits PW-2 in his testimony stated the role/duty of a
regular mazdoor, the duties did not include installing of new STD/ISD
connection, or re-connecting a telephone line. Thus, appellant Lala Ram
could not have performed the alleged acts - being beyond the scope of his
duty.
16. Mr. Gupta further submits that PW-24 Sh. S.L. Khurana stated that
the jumper of telephone line of number 3716165 was opened on 13.03.1990.
The conspiracy in the present case is alleged to have started in December,
1994. He submits that there is no evidence to establish as to whom the said
telephone number was allotted to, or what the status of the said telephone
number was between 1990 and December, 1994. There is no evidence on
record to establish that the said telephone number was vacant or unallocated
before December, 1994, for the conspiracy to be hatched.
17. Learned counsels appearing for the appellants submit that the
prosecution alleged that appellant Lala Ram made a call for appellant Bhag
Chand on the day of the surprise check to disconnect the telephone line of
number 3716165. The alleged call was answered by PW-16, Shobha Dutta.
They submit that there is no evidence on record to establish that appellant
Lala Ram made the alleged call. They submit that merely because the person
who made the call identified himself as Lala Ram, it does not establish that
the appellant himself made the said call. Any person could have
impersonated the appellant Lala Ram, and made the said call. There is no
recording of the conversation, nor a voice sample was collected and
compared. They submit that in absence of any evidence to establish that the
appellant Lala Ram made the call, it cannot be held that he made the call,
only on the basis of statement of PW-16 and, thus, the Trial Court erred in
holding that the appellant Lala Ram made the call.
18. They submit that PW-16, Shobha Dutta, who answered the alleged
call, allegedly made by appellant Lala Ram, did not identify the voice of the
appellant as she heard the voice for the first time on the day of the surprise
check i.e. 30.06.1995. PW-16 has stated that "It is correct that prior to the
said incident I have never heard the voice of Lala Ram". Thus, as PW-16
had not heard the voice of appellant Lala Ram earlier, she could not identify
it and relied only on the fact that the person on other side of the call claimed
himself to be Lala Ram. They submit that CBI has failed to prove that
appellant Lala Ram made the alleged call for appellant Bhag Chand, which
was answered by PW-16, Shobha Dutta. The prosecution has failed to
corroborate the evidence of PW-16 that the call was made by Lala Ram.
They further submit that CBI made no investigations to find out the number
from which the call was made, and no recording of the call was done.
19. Ld. Counsels appearing for the appellants further submit that PW-3
Sh. BS Rawat deposed that "There a physical verification was conducted by
the capable staff. All the staff present was physically verified in the office. At
that time, Lala Ram and some others had gone for taking (sic) tea". Further,
PW-17 Sh. S.R. Singh and PW-22 Sh. R.S. Yadav deposed to the same
effect, that appellant Lala Ram had taken a tea break at the time the alleged
call was made. Further, DW-1 Sh. Jaswant Singh, who was also a daily
wage worker in MTNL, deposed in his examination-in-chief to the following
effect:
"On 30.6.95 at about 11.30 am, I had gone to bring tea from the
Canteen situated on the 5th floor where Lala Ram also met me.
Thereafter we had tea there and we remained for about 45
minutes in the Canteen. There is no telephone in the canteen.
Lala Ram did not make any telephone call in my presence
during that period."
20. They submit that according to PW-3, 17, 22 and DW-1, the appellant
Lala Ram had gone for a tea break at the time the alleged call was made,
thus, it is impossible for him to have made the call from MDF when he was
in the canteen having tea. Reliance has been placed on Sangili Vs. State of
Tamil Nadu, (2014) 10 SCC 264 in support of this submission.
21. Learned counsels for appellants submit that the Joint Surprise Check
memo (Ex. PW4/A) states that PW-16 Shobha Dutta received the telephone
call on the number 3326090. Whereas, PW-16 in her examination-in-chief
dated 30.01.2004 has not stated the telephone number of the phone on which
she received the call. They submit that the telephone number on which the
call was received has not been proved in evidence. This casts a shadow of
doubt, whether the alleged call was, in fact, made or not.
22. Learned counsels for appellants submit that PW-17, Sh. S.R. Singh,
deposed that PW-9 Sh. K.K. Nayyar called to inform him that appellant Lala
Ram of MDF section made a call for appellant Bhag Chand. Further, PW-9
Sh. K.K. Nayyar has very categorically deposed that "I did not use any of
those telephones lying there for any purposes including the disconnected
one". Thus, the statements of the two prosecution witnesses are
contradictory.
23. Mr. Sethi, for appellant Diwan Chand Pruthi submits that PW-9, K.K.
Nayyar, had stated that "A video reel was made by CBI on the date of raid".
However, CBI has not produced this video recording on record. Mr. Sethi
submits that the video recording could have established that PW-16 Shobha
Dutta received the alleged call, but CBI has withheld the same. Further, CBI
has not been able to explain and establish what happened at the site during
the surprise check. Thus, adverse inference has to be drawn against the
CBI/prosecution.
24. Learned counsels for the appellants submit that none of the
prosecution witnesses have deposed that appellant Diwan Chand Pruthi was
making a monthly payment of Rs 25,000/- to appellant Lala Ram. He
submits that for the offence to be brought under the ambit of Section 13 of
PC Act, accused Lala Ram should have received an 'illegal' gratification.
However, there was no recovery of any illegal gratification from the
appellant Lala Ram or from the house of the appellant Lala Ram, nor was
any evidence brought on record to prove that illegal gratification had been
received by him. They further submit that the prosecution had the burden of
proof to establish there was demand and acceptance of Rs. 25,000/- as
illegal gratification. However, the prosecution has failed to discharge the
said burden, as there is no evidence to prove that the appellant Lala Ram
accepted the illegal gratification, or that appellant Bhag Chand gave the
same. Reliance is placed on C Sukumaran Vs State of Kerala, (2015) 11
SCC 314 in support of this submission.
25. Further, Learned counsels for the appellants submit that the CBI had
charged accused no. 5. Mr. Samir Pruthi and accused no. 4, Mr. Kapil
Bhasin. They were charged for destruction of receipts/IOU's relating to the
alleged illegal gratification of Rs. 25,000/-. The Trial Court discharged Mr.
Samir Pruthi as accused vide order dated 25.02.2000, while this Court
discharged Mr. Kapil Bhasin vide order dated 10.10.2002. They submit that
since the Courts have discharged both the accused, there is no evidence to
prove the payment of illegal gratification to the appellant Lala Ram.
26. Learned counsel for the appellants submit that appellant Bhag Chand
in his disclosure statement (Ex. PW-4/D) has disclosed that after receiving
the money he would sign on a slip "recd and signed". He further stated that
he could lead the CBI team for recovery of the slips. However, these slips
were never recovered by the CBI team. As there was no recovery pursuant
to the disclosure statement of appellant Bhag Chand, Section 27 of Indian
Evidence Act, 1872 (Evidence Act) cannot be invoked by the prosecution.
They further submit that the only incriminating evidence on record against
appellant Lala Ram is the disclosure statement of appellant Bhag Chand (Ex.
PW-4/D), which has been rightly held to be inadmissible evidence by the
Trial Court, on grounds of being barred in accordance with Sections 25 and
26 of Evidence Act. Thus, the same cannot be used against the accused
persons.
27. Learned counsels for the appellants submit that the appellant Lala
Ram made a disclosure statement before the CBI officials, wherein he stated
that the telephone line had been diverted from number 3716165 to 3713201,
but the Trial Court held that the said disclosure statement is inadmissible
evidence, and thus, cannot be relied upon. He submits that other than the
disclosure statement no evidence was produced to establish the diversion of
telephone number 3716165 to 3713201. They referred to the statement of
PW-24, Sh. RS Yadav, wherein he stated that "the vertical record only tells
the particular pillar to which pair 38Q/1 was going and that pillar feeds the
M block of Connaught Place and it does specify the particular building or
office where the pair is connected". Even PW-24 only states that the
connection was in M block Connaught Place. He does not specify the
building. Thus, the diversion is highly doubtful.
28. Mr. Sethi submits that appellant Diwan Chand Pruthi was made an
accused solely on the basis of the disclosure statement of appellant Bhag
Chand (Ex. PW4/D). The disclosure statement of appellant Bhag Chand
states that the appellant Diwan Chand Pruthi hatched a conspiracy in order
to get the STD/ISD line. Mr. Sethi submits that since the disclosure
statement has been held to be inadmissible evidence, there is no evidence
against appellant Diwan Chand Pruthi.
29. Learned counsels for the appellants further submit that the
prosecution alleged that a conspiracy was hatched between the three
appellants/accused persons. The prosecution has not been able to produce
any evidence on record to show that there was meeting of minds and a
conspiracy hatched, and that the alleged acts were in furtherance of a
common intention. They submit that the entire case of the prosecution is
based on circumstantial evidence, and there is no direct evidence to bring
home the guilt of the three accused/appellants. They rely on K.R.
Purushottam Vs. State of Kerala, (2005) 12 SCC 631, in support of this
submission.
30. Further, reliance is placed on State Vs. Nalini, (1999) 5 SCC 253, for
the same purpose. They submit that in Nalini (supra), the Supreme Court
held that Section 10 of Evidence Act is an exception to Section 30 of
Evidence Act. Section 10 is based on the legal principle that a statement of
co-conspirator is only binding on the other co-conspirators as long as it is
made during subsistence of common intention. There can be two objections
to the admissibility of evidence under Section 10, and they are (1) the
conspirator whose evidence is sought to be admitted against other co-
conspirator is not confronted, or cross-examined in Court by the co-
conspirator, and (2) prosecution merely proves the existence of reasonable
ground of the conspiracy. The Supreme Court further held that the
prosecution has to produce independent witnesses to establish the existence
of a conspiracy and to corroborate the statement of the co-conspirator. They
submit that, in the present case, the prosecution has not satisfied both the
objections, as the appellant Lala Ram was not cross-examined, and there is
no corroboration of the alleged telephone call made by appellant Lala Ram.
31. Mr. Mathur submits that the Trial Court has convicted appellant Bhag
Chand on basis of conduct of appellant Lala Ram. The Trial Court relied
upon the alleged phone call by the appellant Lala Ram to the appellant Bhag
Chand and, thus, held the appellant Bhag Chand as a co-conspirator under
Section 10 of Evidence Act, holding him guilty under Section 120-B of IPC.
He further submits that the prosecution has failed to prove the alleged call
made by Lala Ram for Bhag Chand. In absence of evidence establishing the
alleged call, the appellant Bhag Chand cannot be convicted. Furthermore, no
witness was produced by prosecution to prove the alleged call. Thus, the
sole basis for conviction of appellant Bhag Chand has not been established.
32. Mr. Sethi, appearing for the accused Diwan Chand Pruthi, submits
that according to prosecution witnesses PW-16 Shobha Dutta, she had made
some test calls to USA and Latur, Maharashtra on the day of the surprise
check. However, there is no mention of these test calls made by Shobha
Dutta in the Joint Surprise Check memo (Ex. PW4/A), nor does PW-16
mention about these tests calls in her examination-in-chief. If PW-16 had
actually made the test calls, the same would have been reflected, at least, in
the Joint Surprise Check memo (Ex. PW4/A), or the statement of PW-16.
Further, he submits that the CBI has failed to prove, who the
subscribers/allottees of the phone numbers in USA and Latur, Maharashtra
were. There is no evidence on record to prove that the calls were actually
made from phone number 3716165.
33. PW-7 Pratap Singh Rawat, an independent witness, stated that "I do
not know the telephone number to which SI Shobha Dutta dialed and phone
at Latur, Maharashtra nor the said number was incorporated in the
Inspection report in my presence and to my knowledge. Same is my answer
about the telephone to USA which was attended by answering machine, even
that was not incorporated in the inspection report". Mr. Sethi submits that
the above deposition of PW-7 Pratap Singh Rawat raises a doubt on the
creditability of Joint Surprise Check memo (Ex. PW4/A), and the test calls
made by CBI officials.
34. Mr. Sethi further submits that it could not be proved as to who made
the call from Cepham Organics office in Connaught Place to Kidwai
Bhawan to confirm the telephone number. PW-7 Pratap Singh Rawat has
stated in his examination-in-chief that he was made to talk to someone from
the EPBAX board of company to confirm the telephone number. However,
PW-7 in his cross-examination stated that "None of the calls which were
made by me personally". He submits that it has not been established on the
record, on which number the said test call was made from the EPBAX board
of the company. Further, PW-20 Ashok Kumar stated that he could not tell
where the said telephone was installed, nor could he tell who made the calls
from the said telephone.
35. Mr. Sethi submits that the Ld. Trial Court has found the three
appellants to be involved in a criminal conspiracy on the basis of statement
of PW-14, Smt. Anuradha Diwan. However, the statement of PW-14 was
not put to the appellant Diwan Chand Pruthi while his statement under
section 313 Cr. PC was recorded. Further, the telephone bills of MTNL (Ex.
PW9/F1 to F4) - another piece of incriminating evidence, were not put to
the three accused persons.
36. Mr. Sethi finally submits that the independent witnesses who
accompanied the CBI team to Cepham Office did not support its case. PW-
5, C.S. Rajwar, deposed about the arrest of Lala Ram, and his presence in
the Cepham Office, Connaught Place. Further, another independent witness
PW-8 Gajendra Sharma deposed that "To my knowledge no telephone was
received in the Kidwai Bhawan Exchange from anywhere". PW-8 was later
declared a hostile witness. He further submits that the prosecution has failed
to prove the entire chain of events with the help of circumstantial evidence.
Thus, the appellants should to be acquitted.
37. The appellants have also placed reliance on the following decisions:
i. State of Maharshtra Vs. Dnyaneshwar Laxman Rao Wankhede,
2009 (15) SCC 200;
ii. Abdul Sufan Vs. The State of Tripura, 2010 CriLJ 805;
iii. Dr. Mahender Singh Dahiya Vs. State (CBI), 2003 CriLJ 1908;
iv. Sharad Birchchand Sarda Vs. State of Maharashtra, 1984 (4) SCC
116;
v. Haresh Mohandas Rajput Vs. State of Maharashtra, 2011 (12) SCC
56;
vi. Khilli Ram Vs. State of Rajasthan, 1985 (1) SCC 28;
vii. Sukhjit Singh Vs. State of Punjab, 2014 (10) SCC 270.
viii. Shabban Vs. CBI, (2014) 146 DRJ 653.
38. Ld. Counsel for the respondent/CBI fully supports the impugned
judgment.
39. Ld. Counsel submits that one search party went to Kidwai Bhawan,
Janpath, and another search party went to Cepham Office in Connaught
Place. A Surprise Check memo (Ex. PW-3/A) was prepared at Kidwai
Bhawan itself. He submits that PW-22 Shri. R.S. Yadav stated in his cross-
examination dated 16.08.2004, that the search party reached MDF, Kidwai
Bhawan at around 11:00 AM or 11:30 AM after leaving from the CBI
Office. He further submits that MDF (Main Distribution Frame) is on the 9 th
Floor of Kidwai Bhawan, and the canteen is on the 5 th Floor of the same
building.
40. Ld. Counsel further submits that on the day of the surprise check a
Surprise Check memo was prepared at Cepham Office vide Ex. PW-4/A.
According to Surprise Check memo (Ex. PW-4/A), one telephone diary and
three visiting card albums were taken into possession from the table of the
PA to the Chairman of the firm. These contained ISD/STD telephone
numbers. The telephone instrument of telephone number 3716165 was also
taken into possession. He submits that the call details of the aforesaid
number establish that calls were made to numbers mentioned in the dairy of
the Chairman of the firm.
41. Ld. Counsel submits that PW-9 K.K. Nayyar has supported the case
of the prosecution in his examination-in-chief, and cross-examination. His
statement was consistent. He submits that PW-9 deposed that "While Smt.
Shobha Dutta, SI of CBI was sitting on the EPBAX board of the company,
one telephone call from Lala Ram from Exchange of Kidwai Bhawan was
received informing that CBI had raided the Kidwai Bhawan Exchange,
MDF room and told that line of telephone no. 3716165 should be
disconnected. This message of Lala Ram was for Mr. Bhagchand of Cepham
Organics". He submits that PW-9 deposed that PW-16 Shobha Dutta made
test calls to confirm the availability of STD/ISD on the telephone line.
42. Ld. Counsel further points to the statement of PW-21 O.P. Midha.
PW-21 corroborated the statement of PW-9 K.K. Nayyar that - PW-16 made
test calls to confirm the availability of ISD/STD facility on the telephone
line. PW-21 also stated that appellant Lala Ram made a call for appellant
Bhag Chand informing him about the raid by CBI at Kidwai Bhawan, and to
disconnect the telephone line of number 3716165. He submits that PW-21
admitted his signatures on the Joint Surprise Check memo (Ex. PW-4/A),
and admitted that telephone instruments and visiting cards were seized in his
presence. He submits that PW-21 supported the case of prosecution fully,
and corroborated the other evidence on record.
43. Ld. Counsel submits that PW-12 Shashi Bajaj was working as an
Office Assistant with Cepham Organics. He submits that PW-12 turned
hostile, and was cross-examined. He stated that "it might be possible that I
had given an envelope containing some amount which I handed over to Shri
Bhag Chand. But I did not know the amount which I handed over to Bhag
Chand. I also did not know the amount as mentioned in my statement. It is
correct that after some days again Bhag Chand came to me. And gave me a
slip and I handed over an envelope containing money to Shri Bhag Chand
but I do not know the amount". He submits that even thought the witness
turned hostile, he stated that money was given to Bhag Chand.
44. Ld. Counsel submits that PW-15 Rita Chopra was the cashier in
Cepham Organics in the year 1995. PW-15 in her examination-in-chief
stated and admitted that there were three entries in day book (Ex. PW-15/A).
The entries were dated 12.12.1994, 10.01.1995 and 25.01.1995 and each of
these entries was for an amount of Rs.12,500. PW-15 deposed one of the
entries was in the name of Chairman of the company, and the other two
entries in the name of one Sanjiv. He submits that the entries of a sum of
Rs.12,500, on 10th and 25th of January, establish that an illegal gratification
of an amount of Rs. 25,000 per month was given. The amount, on one
occasion, was withdrawn in the name of the Chairman of the company.
45. Ld. Counsel submits that the accused no.2/Diwan Chand Pruthi made
his statement under Section 313 Cr. PC on 25.07.2005. Later, on
examination of PW-18 Shri Dev Dutt, Diwan Chand Pruthi made another
statement under Section 313 on 06.09.2005. In the latter statement, he gave
a detailed reply to questions 2, 3 and 4. He stated that "The material
collected in the form of diary and visiting card loses its significance because
the CBI has made false case against me". He submits that the accused no.2
admitted that the dairy and the visiting cards were recovered from his office
on the day of the surprise check.
46. Ld. Counsel submits that appellant Bhag Chand in his statement under
Section 313 Cr PC stated that "The false case has been framed against me. I
was not beneficiary in any manner nor I had conspired with anybody to
commit the offence in questions". He submits that the appellant in this
statement did not say that the said offence has not been committed; he only
states that he was not a part of the said offence, implying that the offence
was committed. He further points to the statement of appellant Lala Ram,
wherein he stated that "I have been falsely implicated by the senior MTNL
officials in order to save their own skin".
47. Ld. Counsel submits that PW-16 Shobha Dutta supported the case of
the prosecution in her examination-in-chief dated 30.01.2004. He submits
that she deposed that she received a call from one Lala Ram on the day of
the surprise check in the Cepham Office. The said call was for Bhag Chand
informing him about the raid at Kidwai Bhawan, and to disconnect the
telephone line with the STD/ISD facility. She further deposed that the
person calling specified that he was calling from MDF, Kidwai Bhawan. She
further deposed that "Bhag Chand was interrogated who confirm this fact of
diverting line of telephone at the premises of Cepham Organics to which he
confirmed that it was correct that an illegal diversion has been done in the
premises of Cepham Organics by Lala Ram... ... ...".
48. In rejoinder, the appellants have placed reliance on:
i. Nilesh Dinkar Paradkar Vs. State of Maharashtra, 2011 (4) SCC
143;
ii. Raj Kumar Singh Alias Raju Alias Batya Vs. State of Rajasthan,
2013 (5) SCC 722.
49. I have heard the submissions of the appellants and the respondent, and
perused the evidence on record, the impugned judgment and the cases relied
upon. The following questions need to be answered in the present case:-
(a) Whether telephone number 3716165 was diverted to disconnected
telephone no.3713201 installed in the premises No. M134, CP, New
Delhi.
(b) If so, whether the same was transferred in pursuant to a
conspiracy? If so was the object of the conspiracy achieved or was it
continuing at the time the raid was carried out by CBI team?
(c) Whether appellant DC Pruthi was involved in the conspiracy?
(d) Whether Bhag Chand was involved in the conspiracy?
(e) Whether Lala Ram was involved in the conspiracy?
50. I shall now deal with the first question drawn up earlier, i.e., Whether
telephone number 3716165 was diverted to disconnected telephone
no.3713201 installed in the premises No. M134, CP, New Delhi. Inspector
Sh. Ved Prakash vide complaint Ex. PW-4/H dated 30.06.1995 informed
the Superintendent of Police, CBI that a reliable information was received
that a telephone line of number 3716165 had been diverted in an
unauthorized manner to the premises of Cepham Organics, 34 M-Block,
Connaught Place. The number was diverted with the connivance of three
appellants herein, resulting into the wrongful loss to MTNL and wrongful
gain to Cepham Organics. Further, the complaint states that a joint surprise
check was conducted at the premises of Cepham Organics and MDF Room,
Kidwai Bhawan, MTNL simultaneously. It was discovered that a line was
extended to the premises of Cepham Organics on the disconnected number
3713201 and, in furtherance of the same, a payment of Rs. 25,000 per month
was made by appellant Diwan Chand Pruthi through appellant Bhag Chand
to appellant Lala Ram. Consequently, FIR vide Ex. PW-4/G, was registered
at PS CBI ACB-1, New Delhi dated 30.06.1995.
51. On 30.06.1995, simultaneously, two surprise checks were conducted.
One at Kidwai Bhawan, MTNL and the other at Cepham Organics Office at
Connaught Place. A Joint Surprise Check Memo vide Ex. PW4/A was
prepared at Cepham Organics Office by Inspector Ved Prakash, and a Joint
Surprise Check memo vide Ex. PW-3/A was prepared at Kidwai Bhawan,
MTNL. Ex. PW4/A was prepared in the presence of all the officers/ persons
who were present at the office during the time of the surprise check, the
same has been signed by them. The said document narrates the entire raid
proceedings as they took place.
52. According to the Joint Surprise Check memo (Ex. PW-4/A), Inspector
Ved Prakash, alongwith the team reached the Cepham Organics office,
Connaught Place at 11:30 AM on 30.06.1995. The inspection concluded at
2:30 PM. The team reached the cabin of Mr. Bhasin, where Mr. Chaturvedi
was found talking on a telephone, which he disconnected on the arrival of
the CBI officials. Thereafter, a call was made to Exchange Switch Room,
Kidwai Bhawan to confirm the telephone number; the number was
confirmed to be 3716165. Further, the said telephone number was dialed
from the EPBAX board by PW-7 Sh. P.S. Rawat to confirm the number.
Once the number was confirmed to be 3716165, test calls were made from it
to Latur, Maharashtra and USA to check the availability of STD/ISD
facility. The test call was made to telephone number 02385-52952 to check
the availability of STD facility, the call matured and, thus, STD facility was
confirmed. Calls were made to the telephone numbers 0013-137470940 and
00441819091530 in the USA to check the ISD facility. ISD facility was also
confirmed as a pre-recorded message of the answering machine was
received. Further, Ex. PW-4/A records that the team deployed at Kidwai
Bhawan found, and confirmed, that the line of telephone number 3716165
was extended to the office premises of Cepham Organics Company in
Connaught Place, and the same was directed to two-three instruments.
During the proceedings, a call was received by PW-16 on telephone number
3326090. PW-16 informed that the said call was made by appellant Lala
Ram, for appellant Bhag Chand, instructing him to disconnect the line of
telephone number 3716165. The Joint Surprise Check memo Ex. PW-4/A
further states that appellant Bhag Chand disclosed that STD/ISD facility on
the disconnected line was provided by appellant Lala Ram, for which
appellant Diwan Chand Pruthi paid two installments of Rs. 12,500/- each,
per month. Ex. PW-4/A states that a telephone diary and three visiting card
albums were taken into possession alongwith the telephone instruments.
PW-4, PW-5, PW-9, PW-10 have confirmed their signatures on the Joint
Surprise Check memo Ex. PW4/A.
53. Sh. K.K. Nayyar, PW-9, deposed that on 30.06.1995 he was directed
by Sh. DS Dabas, Vigilance Officer MTNL to attend CBI Office. Upon
reaching the CBI office, he was briefed that telephone line of one number
was being misused by diverting to another telephone line. The team led by
Sh. Ved Prakash went to the Cepham Organics Office, Connaught Place. On
reaching the office, one Mr. Bhasin was talking on the telephone no.
3716165. Test calls were made to USA and Latur, Maharashtra from the
telephone number to confirm the availability of STD/ISD facility. The
telephone call to Latur, Maharashtra was made by a lady officer of CBI.
While, PW-16 Shobha Dutta was sitting on the EPBAX board of the
company, a telephone call was received by her from Lala Ram from the
Telephone Exchange at Kidwai Bhawan. Lala Ram left a message for Bhag
Chand to disconnect the telephone line of number 3716165, and informed
him about the raid at Kidwai Bhawan. PW-9 was present near PW-16 when
the said call was made. He stated that PW-16 Shobha Dutta made the test
calls. He further stated that the telephone number 3713201 was disconnected
for non-payment of dues. He proved his signatures on the Joint Surprise
Check memo Ex. PW4/A bearing at point A.
54. PW-10 SC Duggal, Sub-Divisional Engineer, MTNL, deposed that he
was directed to attend the CBI Office and to assist Inspector Ved Prakash on
the day of the surprise check. He deposed that the team reached the Cepham
office at 11:30AM and saw that Mr. Bhasin was talking on the phone, and
on seeing the officer, he kept the phone down. A call was made to Kidwai
Bhawan Exchange Switch room to confirm the telephone number. It was
confirmed to be 3716165, and was working on two parallel lines. He
deposed that some telephone calls were made by CBI officials and a lady
officer from the said number. Further, a call was made by appellant Lala
Ram for appellant Bhag Chand from the Telephone Exchange, and a
message was left for Bhag Chand to disconnect the telephone line. Further,
he proved his signatures on the Joint Surprise Check Memo Ex. PW4/A.
55. Sh. O.P. Midha (PW-21) was another MTNL Officer who was present
during the surprise check proceedings. PW-21 deposed that two teams were
constituted by the CBI, and he was a part of the team led by Sh. Ved
Prakash; the team went to Cepham Organics office in Connaught Place. On
reaching the Cepham office, it was found that a person was making a call
from the cabin of Mr. Bhasin. Thereafter, a call was made to confirm the
said telephone number, and the number was confirmed to be 3716165. He
stated that thereafter calls were made to confirm the availability of STD/ISD
facility on the said telephone number. Further, PW-16 received a call from
appellant Lala Ram (from MDF), for appellant Bhag Chand, informing him
about the raid at Kidwai Bhawan and to disconnect the unauthorized
telephone line with STD/ISD facility. He proved Ex. PW4/A which bore his
signature. Further, in his cross-examination, he explained the procedure for
installing of a STD/ISD connection. He stated that line men do the
installation work. He stated that the verification is done by Field Staff, after
which the SD (Record) orders for the opening of the telephone line. Further,
a regular mazdoor has no role in the entire process.
56. PW-5 Sh. C.S. Rajwar was an independent witness in the CBI team at
Cepham Organics office. He deposed in his examination-in-chief that one
lady SI was deputed at the EPBAX Board, she received one call from
Kidwai Bhawan, which was made by appellant Lala Ram, for appellant
Bhag Chand. Lala Ram left a message informing about the raid, and to
disconnect the telephone line with ISD/STD facility. He also deposed that
CBI officials went to Kidwai Bhawan, and arrested Lala Ram. He identified
his signatures on Ex. PW4/A. The other independent witness PW-7 Sh.
Pratap Singh Rawat stated that on 30.06.1995, he alongwith the CBI team
went to the Cepham Organics office. He stated that the telephone number
was confirmed; test calls were made; a call from Lala Ram was received by
PW-16 Shobha Dutta; and confirmed his signature on Joint Surprise Check
memo (Ex. PW4/A).
57. Sh. R.S. Tokas (PW-4) stated that he accompanied the CBI team to
the Cepham Organics office at Connaught Place. He stated that upon
reaching there, calls was made from telephone number 3716165 to confirm
the number; once the number was confirmed, test calls were made to USA
and Latur, Maharashtra to confirm the facility of ISD/STD on the said
telephone number. He further deposed that a telephone call was received by
Lady Officer, Shobha Dutta. The said call was for Bhag Chand, by Lala
Ram. He left a message to disconnect the said telephone line. Lala Ram said
he was calling from Kidwai Bhawan, where the raid was being conducted by
the CBI.
58. PW-16 Shobha Dutta stated that she was posted as Sub-Inspector,
ACB, CBI, New Delhi on the day of the surprise check. She joined the
surprise check under the leadership of Inspector Ved Prakash and went to
the office of Cepham Organics. She stated that "During the surprise check, I
received a call from one person named Lala Ram and asked me whether I
am speaking from Cepham Organics Pvt. Ltd. to which I replied in
affirmative. He asked me to convey his message to Bhag Chand to
disconnect the telephone which was provided by him to the company with
ISD/STD facility. I asked as to why the telephone had to be disconnected to
which he told that CBI had raided at MDF, Kidwai Bhawan from where he
was calling. I informed this fact to Inspr. Ved Parkash". Further, she stated
that Bhag Chand was interrogated who disclosed and confirmed about the
illegal diversion of telephone line for two installments of Rs. 12,500 each
per month. She admitted her signatures on Joint Surprise Check memo.
Further, in her cross-examination, she stated that that test calls were made to
USA and Latur, Maharashtra. She stated that "It is incorrect that neither I
was present there nor I made any call".
59. The prosecution witnesses consist of public servants, police officers
and independent witnesses. The Supreme Court in Tahir Vs. State (Delhi),
(1996) 3 SCC 338; Girja Prasad (Dead) by LRs Vs. State of Madhya
Pradesh, (2007) 7 SCC 625; and Rohtash v. State of Haryana, (2013) 14
SCC 434, has held that the statement of a Police Officer can be relied upon,
and even form the basis of conviction when it is reliable, trustworthy and
preferably corroborated by other evidence on record. Thus, the statements of
Police officials are admissible evidence, and can be relied upon by the
Courts, as they appear to be reliable and corroborated by the independent
witnesses. The accused have not claimed in their statements recorded under
Section 313 Cr.P.C., that any of these witnesses - including the CBI raiding
team members, had any reason to falsely frame them.
60. The abovementioned prosecution witnesses stated the events, as they
happened. On 30.06.1995, they were told to attend a meeting at the CBI
Office. Upon reaching the CBI office, two teams were formed - one went to
Kidwai Bhawan, and the other went to Cepham Organics Office, Connaught
Place. The aforesaid witnesses, viz. PW-4, PW-5, PW-7, PW-9, PW-10,
PW-16 and PW-21 were a part of the team which went to Cepham Organics
Office, Connaught Place. The team was led by Inspector Ved Prakash.
Further, upon reaching Cepham Organics Office, they saw that a person was
talking on the phone in the cabin of Mr. Bhasin, which he disconnected upon
seeing the officials. Thereafter, a call was made to Kidwai Bhawan from the
said telephone number 3716165 to confirm the telephone number. The
number was confirmed by DET. PW-21 stated that the said telephone
number was also dialed from the EPBAX Board in the company by PW-7;
the number was confirmed. PW-9, Sh. K.K. Nayyar in his statement stated
that the said telephone number was operational in the office of Cepham
Organics. PW-10 and PW-9 stated that there were parallel lines of the said
number in the two rooms, besides EPBAX Board. PW-9 and PW-10 stated
that Mr. Bhasin was talking on the phone when the CBI team entered the
office, whereas according to other witnesses and the Joint Surprise Check
memo (Ex. PW-4/A) a person was talking on the phone in the cabin of Mr.
Bhasin. The Joint Surprise Check memo (Ex. PW-4/A) names the person as
Mr. Chaturvedi. This discrepancy in the statement of the prosecution
witnesses appears to be the result of a long time gap between the incident
and the recording of the statement of the witness. Moreover, it is not in
dispute that the cabin was that of Mr. Bhasin. Therefore, if any of the
prosecution witnesses named the person occupying the cabin as Mr. Bhasin,
it is not exceptionable. The fact remains that a person was occupying the
cabin; was talking on the telephone number 3716165, and; he disconnected
the call on seeing the raiding party. Merely because the gentleman was later
identified as Mr. Chaturvedi is not destructive of the case of the prosecution,
because the raiding party were strangers to the said Shri Chaturvedi. The
statements were given by the prosecution witnesses after 8-9 years of the
Joint Surprise Check and, thus, minor discrepancies are known to creep in.
(See State of Rajasthan Vs. Smt. Kalki and Anr., (1981) 2 SCC 752)
61. Further, PW-4, PW-5, PW-7, PW-9, PW-10, PW-16 and PW-21 have
stated in their testimonies that test calls were made to Latur, Maharashtra
and USA to confirm the availability of STD/ISD facility on the said
telephone line. They stated that the calls were made by PW-16 Shobha
Dutta, who confirmed and corroborated the same. Ex.PW20/A corroborates
the statement of PW16 with regard to the making of test calls to Latur,
Maharashtra and to USA.
62. The Joint Surprise Check memo (Ex. PW-3/A) stated that the surprise
check was conducted at MDF, Kidwai Bhawan, New Delhi (1 st Floor) at
KBN annex. Further, the physical verification (testing) of the wiring of
telephone number 3716165 was conducted by Sh. Devdutt Bansal (PW-18)
in presence of Sh. D.K. Sharma (PW-11). Ex. PW-3/A explained that the
telephone line was coming from the Switch Room and it terminated on N.E.
exchange number 85-0-23, it extended to ET-1603 and further to local pair
38Q/1, which was leading to M-Block in Connaught Place. The cable pairs
were found to be exchanged. It further states that a call was received from
Sh. K.K. Nayyar (PW-9), who was at Cepham Organics office. PW-9
informed that one Lala Ram had made a call informing that CBI had raided
Kidwai Bhawan and also to disconnect the wiring. On inquiry, PW-11 stated
that Lala Ram was on duty but was not present in the MDF section, as he
had left for a tea break; Lala Ram was found with one Umrao Singh. On
questioning, appellant Lala Ram revealed that a telephone number 3716165
was extended to telephone number 3713201, which was earlier functional at
Cepham Organics office. Lala Ram stated that the telephone number was
extended by him to pair 38Q/1 at MDF. Ex. PW-3/A further stated that
appellant Lala Ram gave a demonstration as to how he extended the
telephone line. The search started at 11:30 AM and concluded at 2:30 PM.
The witnesses present at Kidwai Bhawan were PW-3, 8, 13, 18, 20, 22, 27
and PW-17. They confirmed the Joint Surprise Check memo by identifying
their signatures on the same.
63. The statements of the aforesaid prosecution witnesses and the Joint
Surprise Check memo (Ex. PW-4/A) help to draw a picture of the events, as
they took place, on the day of the surprise check at Cepham Organics. The
statements of these witnesses corroborate Ex. PW-4/A and, thus, establish
that a surprise check was conducted at the Cepham Organics office on
30.06.1995, and an unauthorized telephone connection no. 3716165 was
found to be connected, live and working with STD/ISD facility.
64. The telephone bills of number 37176165 (Ex. D-32) show the call
details for the period between 07.12.1994 to 15.01.1995. Perusal of these
bills establishes that the said telephone number was used to make STD/ISD
calls. It is also stands established from the Joint Surprise Check memo (Ex.
PW-4/A) that a diary and three visiting cards album were seized from the
Cepham Organics office. Further, it is noted that some of the numbers dialed
from telephone number 3716165 are the numbers mentioned in the diary of
appellant Diwan Chand Pruthi, which was seized from his office on the day
of the surprise check i.e. 30.06.1995. Further, Ex. D-35 is a document which
shows the call details of calls made from telephone number 3716165
between 15.01.1995 to 15.03.1995, which also shows that the same numbers
were dialed in this period as well, and STD/ISD facility was being used.
Further, Ex. PW-20/A is the Meter Observation Summary for 30.06.1995
i.e. the day of surprise check. On perusal of the same, it is noted that the
three telephone numbers mentioned in the Joint Surprise Check memo (Ex.
PW-4/A), which the CBI officials called to confirm the STD/ISD facility,
are reflected in Meter Observation Summary of 30.06.1995 (Ex. PW-20/A).
Thus, it establishes that test calls were made by CBI officials to confirm the
availability of the STD/ISD facility from the telephone number 3716165.
65. I shall now advert to question number 2 i.e., If so, whether the same
was diverted pursuant to a conspiracy? If so was the object of the
conspiracy achieved, or was it continuing at the time the raid was carried
out by CBI team?
66. Section 120 A, IPC defines criminal conspiracy to mean - when two
or more persons agree to do, or cause to be done (a) an illegal act, or (b) an
act, which not illegal by illegal means, such an agreement will be termed as
a criminal conspiracy. In K.R. Purushottam (supra), the Supreme Court held
as follows:
11. ... ... ... ... ... In Major E.G. Barsay v. State of Bombay,
1961 CriLJ 828, Subba Rao J., speaking for the Court has said:
"The gist of the offence is an agreement to break
the law. The parties to such an agreement will be
guilty of criminal conspiracy, though the illegal
act agreed to be done has not been done. So too, it
is not an ingredient of the offence that all the
parties should agree to do a single illegal act. It
may comprise the commission of a number of
acts."
12. In State v. Nalini and Ors., 1999 CriLJ 3124 it is
observed by S.S.M. Quadri J. at paragraph 677:
"In reaching the stage of meeting of minds, two or
more persons share information about doing an
illegal act or a legal act by illegal means. This is
the first stage where each is said to have
knowledge of a plan for committing an illegal act
or a legal act by illegal means. Among those
sharing the information some or all may form an
intention to do an illegal act or a legal act by
illegal means. Those who do form the requisite
intention would be parties to the agreement and
would be conspirators but those who drop out
cannot be roped in as collaborators on the basis
of mere knowledge unless they commit acts or
omissions from which a guilty common intention
can be inferred. It is not necessary that all the
conspirators should participate from the
inception to the end of the conspiracy; some may
join the conspiracy after the time when such
intention was first entertained by any one of them
and some others may quit from the conspiracy.
All of them cannot but be treated as conspirators.
Where in pursuance of the agreement the
conspirators commit offences individually or adopt
illegal means to do a legal act which has a nexus
to the object of conspiracy, all of them will be
liable for such offences even if some of them have
not actively participated in the commission of
those offences."
13. To constitute a conspiracy, meeting of mind of two or
more persons for doing an illegal act or an act by illegal means
is the first and primary condition and it is not necessary that all
the conspirators must know each and every detail of conspiracy.
Neither it is necessary that every one of the conspirators takes
active part in the commission of each and every conspiratorial
acts. The agreement amongst the conspirators can be inferred
by necessary implication. In most of the cases, the conspiracies
are proved by the circumstantial evidence, as the conspiracy is
seldom an open affair. The existence of conspiracy and its
objects are usually deducted from the circumstances of the
case and the conduct of the accused involved in the
conspiracy. While appreciating the evidence of the conspiracy,
it is incumbent on the Court to keep in mind the well-known
rule governing circumstantial evidence viz. each and every
incriminating circumstance must be clearly established by
reliable evidence and the circumstances proved must form a
chain of events from which the only irresistible conclusion
about the guilt of the accused can be safely drawn, and no
other hypothesis against the guilt is possible. Criminal
conspiracy is an independent offence in the Penal Code. The
unlawful agreement is sine qua non for constituting offence
under the Penal Code and not an accomplishment. Conspiracy
consists of the scheme or adjustment between two or more
persons which may be express or implied or partly express and
partly implied. Mere knowledge, even discussion, of the plan
would not per se constitute conspiracy. The offence of
conspiracy shall continue till the termination of agreement."
(Emphasis Supplied)
67. Thus, a criminal conspiracy comes into being when two or more
persons come to an agreement to do an illegal act. It is not necessary that all
the persons in the conspiracy should know everything, or that each
conspirator should join the conspiracy at the same time. The conspiracy
continues till the agreement is terminated either on its completion, or
otherwise. The existence of a conspiracy and its objective are usually
deducted from the circumstances of the case and the conduct of the accused
involved in the conspiracy. The Supreme Court in Kehar Singh and Ors.
Vs. State (Delhi Administration), (1988) 3 SCC 609, observed that a
conspiracy is always hatched in secrecy, and it may be difficult to adduce
direct evidence in such cases, and the prosecution will more often rely on
circumstantial evidence. The Supreme Court in Nalini (supra) observed that
all conspirators need not take active part in the conspiracy. The Supreme
Court observed:
"583. Some of the broad principles governing the law of
conspiracy may be summarized though, as the name implies, a
summary cannot be exhaustive of the principles.
x x x x x x x x
10. A man may join a conspiracy by word or by
deed. However, criminal responsibility for a
conspiracy requires more than a merely passive
attitude towards an existing conspiracy. One who
commits an overt act with knowledge of the
conspiracy is guilty. And one who tacitly consents
to the object of a conspiracy and goes along with
other conspirators, actually standing by while the
others put the conspiracy into effect, is guilty
though he intends to take no active part in the
crime."
68. According to Section 10 of Evidence Act, once a conspiracy is
established by the prosecution, then any act of a co-conspirator, which is in
furtherance of the conspiracy, will become the act of the other co-
conspirators. Section 10 reads as follows:
"10. Things said or done by conspirator in reference to common
design.--Where there is reasonable ground to believe that two
or more persons have conspired together to commit an offence
or an actionable wrong, anything said, done or written by any
one of such persons in reference to their common intention,
after the time when such intention was first entertained by any
one of them, is a relevant fact as against each of the persons
believed to so conspiring, as well for the purpose of proving the
existence of the conspiracy as for the purpose of showing that
any such person was a party to it. "
69. The Supreme Court in Central Bureau of Investigation Vs. V.C.
Shukla and Ors., (1998) 3 SCC 410, held:
"40. ... ... .In dealing with this Section in Sardul Singh v. State
of Bombay, 1957 CriLJ 1325, this court observed that it is
recognised on well established authority that the principle
underlining the reception of evidence of the statements, acts and
writings of one co-conspirator as against the other is on the
theory of agency. Ordinarily, a person cannot be made
responsible for the acts of others unless they have been
instigated by him or done with his knowledge or consent. This
section provides an exception to that rule, by laying down that
an overt act committed by any one of the conspirators is
sufficient, (on the general principles of agency) to make it the
act of all. But then, the opening of words of the Section makes in
abundantly clear that such concept of agency can be availed of,
only, after the Court is satisfied that there is reasonable ground
to believe that they have conspired to commit an offence or an
actionable wrong. In other words, only when such a
reasonable ground exists, anything said, done or written by
any one of them in reference to their common intention
thereafter is relevant against the others, not only for the
propose of proving the existence of the conspiracy but also for
proving that the other person was a party to it. In Bhagwan
Swarup v. State of Maharashtra 1976 CriLJ 860, this court
analysed the section as follows:-
"(1) There shall be a prima facie evidence
affording a reasonable ground for a Court to
believe that two or more persons are members of a
conspiracy; (2) if the said condition is fulfilled,
anything said, done or written by any one of them
in reference to their common intention will be
evidence against the other; (3) anything said, done
or written by him should have been said, done or
written by him after the intention was formed by
any one of them; (4) it would also be relevant for
the said purpose against another who entered the
conspiracy whether it was said, done or written
before he entered the conspiracy or after he left it;
and (5) it can only be used against a co-
conspirator and not in his favour.""
(Emphasis Supplied)
70. Accordingly, the words spoken and act performed by any one of the
conspirator will be relevant to prove the involvement of the other accused
persons/co-conspirators in the conspiracy, provided the Court has reasonable
ground to believe that a conspiracy exists. Hence, in the present case, the
conspiracy is to be established in the light of the aforesaid decision. Now as
far as conspiracy is concerned, although prosecution is liable to produce
independent evidence as to existence of the conspiracy for Section 10 to
operate, it need not prove the same beyond reasonable doubt (See Nalini
(supra)). The provision itself states "... where there is reasonable ground to
believe that two or more persons have conspired together to commit a
crime....".
71. In the aforesaid background, it is necessary to deal with the effect of
the telephone call received by PW16 Ms. Shobha Dutta, at the premises of
M/s. Capharm Organics Pvt. Ltd. during the raid. PW4, PW5, PW9, PW10
and PW21, all deposed that PW 16 had received a call while the raid was in
progress and the caller had a message for Bhag Chand i.e. he may be asked
to remove the telephone line with unauthorized ISD facility. PW 16 Ms.
Shobha Dutta deposed that she informed about the fact to Inspector Ved
Prakash. Inspector Ved Prakash is not a witness. However, as already
indicated PW4, PW5, PW9, PW10 and PW21 deposed that PW16 had
informed them about receiving a call from a person claiming to be Lala
Ram, and the message was for accused Bhag Chand. Capital is sought to be
made by the appellants of the fact that PW-9 stated that PW-16 informed the
team, and not only the Inspector, about the call. There is no contradiction in
the said testimonies. PW-16 has not stated that this information was not
disclosed to any other member of the raiding team, or that it was secretly
informed to Inspector Ved Prakash. She has not stated that she did not share
this information with others in the raiding team. Moreover, this call was
received in the presence of the other prosecution witnesses present as a part
of the raiding team, as deposed by them. Although none of them directly
heard the conversation but, as the information was given to them during the
course of raid by PW16, it may be considered as part of the same transaction
within the meaning of Section 6 of the Evidence Act, and therefore may be
considered res gestae. The act of caller in making the phone call and the
conversation became relevant under Section 8 of the Act. After the call was
disconnected, and during the course of the raid, the members of the raiding
party were informed about the contents of the telephone call. The act of
receiving the phone call, and disclosure of the contents of the phone call
during the course of the raid would be a part of the same transaction, and
therefore res gestae. The two acts can safely be labeled contemporaneous.
Reliance may be placed upon Kameshwar Prasad Singh Vs Rex, 1951 ALJ
149; Emperor Vs Ramchandra Rango Sawkar, AIR 1939 Bombay 129;
Hadu Vs The State, AIR 1951 Orissa 53; also Om Singh Vs State of
Rajasthan, 1997 CriLJ 2419 (DB) (RAJ.). It is settled law that a statement
of a bystander, or somebody who has perceived an occurrence or event is
admissible, if it is made during or immediately after the incident and it is
relevant to the facts in issue (See Bhaskaran Vs State of Kerala, 1985 CriLJ
1711). The conduct of the caller and the words spoken by him when viewed
along with the conduct of the caller in making the phone call-seeking
disconnection of the unauthorized connection is also relevant under section
8 of the Evidence Act. Evidence of such act can always be received,
whether the co-conspirator who made the call was on trial or not, to prove
the existence of the conspiracy (See Sardul Singh Caveeshar Vs The State
of Bombay, AIR 1957 SC 747). Thus, it stands established that a call was
received by PW-16 Shobha Dutta from a person who gave his name as Lala
Ram; calling from Kidwai Bhawan, MTNL Office; the caller asked for Bhag
Chand - thus he knew Bhag Chand of Cepham Organics; he stated that a
CBI raid had taken place in Kidwai Bhawan, and; the telephone lines of
3716165 should be disconnected which had STD/ISD connection. The
telephone call received by PW16 asking her to inform Bhag Chand to
disconnect the STD line gives further reasonable ground to believe existence
of conspiracy between two or more persons. The conclusion is regardless of
the identity of the caller being established. Only a conspirator would call to
warn his co-conspirators to abort an ongoing crime. Therefore, once it is
concluded that the call was made by a co-conspirator, not only conspiracy is
established but what was said on telephone by one conspirator can always be
used against each conspirator, inter alia, to establish who all were
conspiring. Thus, it can safely be concluded that there are reasonable
grounds to believe that the telephone line of 3716165 was diverted to
Cepham Organics at M-134, Connaught Place, New Delhi, under a
conspiracy to unauthorisedly misuse the said telephone line.
72. Now I will advert to question number 3, i.e., Whether appellant DC
Pruthi was involved in the conspiracy? It stands established from the Joint
Surprise Check memo (Ex. PW-4/A) that a diary and three visiting cards
album were seized from the Cepham Organics office. Further, it is noted that
some of the numbers dialed from telephone number 3716165 are the
numbers mentioned in the diary of appellant Diwan Chand Pruthi, which
was seized from his office on the day of the surprise check i.e. 30.06.1995.
Further, Ex. D-35 is a document which shows the call details of calls made
from telephone number 3716165 between 15.01.1995 to 15.03.1995, which
also shows that the same numbers were dialed in this period as well, and
STD/ISD facility was being used. Appellant Diwan Chand Pruthi gave a
statement under Section 313 CrPC on 25.07.2005, and again on 06.09.2005.
In the statement dated 25.07.2005, he stated:
"Ques 2. It is also in evidence against you that you through your
co-accused Bhag Chand got diverted unauthorisedly line of
telephone number 3716165 by your co-accused Lala Ram on a
disconnected telephone of the firm against a monthly payment to
Rs. 25,000/- to Lala Ram by you through Bhag Chand, your
employee. What have you to say?
Ans. It is incorrect.
Ques3. It is further in evidence against you that you were using
the telephone number 3716165 for making STD and ISD calls
and the numbers appearing in the print out of telephone number
3716165 are matching with the numbers mentioned in the dairy
mark- B,C and D which means that the above said telephone
was frequently used from your office illegally. What have you to
say?
Ans. It is incorrect. "
73. In the statement made on 06.09.2005, appellant Diwan Chand Pruthi
gave a detailed reply to the aforementioned questions. He also admitted that
visiting cards albums and diary was recovered from his office, thus,
corroborating the Joint Surprise Check memo (Ex. PW4/A) on this aspect.
74. PW-3 Sh. B.S.Rawat an independent witness stated that after five or
seven days of the surprise check, they had gone to M/s Cepham Organics
Company Limited, Nehru Place, for surprise check and he joined the team
where Memo Ex.PW-3/B was prepared bearing his signatures at point 'A'
on all four pages and the documents mentioned in this memo bearing serial
No. 1 to 20 were seized by CBI Officer in his presence and he signed as a
witness. Vide Ex.PW3/B, Serial No. 9, personal file of accused Bhag Chand
containing 41 pages was seized by CBI Officer. Page No. 28 is the original
Inter-Office Memo of M/s Cepham issued by Chairman, Diwan Chand
Pruthi (accused No. 2) to G.M.(HRD) dated 10.9.1994 which reads as
under:-
"Henceforth Mr. Bhagchand will look after my jobs exclusively
and will report to Mr. C O Danniel. Please ensure compliance
with immediate effect.
Sd/-
(DEWAN C PRUTHI)"
75. In the cross-examination of PW3 Sh. B.S.Rawat and PW-30 Sh.
R.V.S.Lohmor, neither accused No. 2 nor accused No. 3 disputed these
facts, i.e. the search at office of M/s Cepham Organics Limited or seizure of
personal file of accused No. 3 or order of accused No. 2 making Bhag
Chand accused No. 3 to do his job exclusively. In his statement u/s 313
Cr.P.C., accused No. 3 Bhag Chand has also admitted that he was working
as Office Assistant with M/s Cepham Organics Limited. PW14 Smt.
Anuradha Diwan stated that during April, 1995, she was working with M/s
Cepham Organics Limited, Connaught Place, New Delhi, as PA to G.M.
(Finance) and his Chairman was D.C.Pruthi (accused No. 2) and Bhag
Chand (accused No. 3) was Office Assistant. She further stated that
whenever P.A. to Chairman was on leave, she used to work as his P.A. She
further stated that D.C.Pruthi (accused No.2) used to direct her to ask Bhag
Chand to connect ISD/STD line in spite of the fact that he was having a
direct line in his office having ISD/STD facility.
76. Though PW14 Smt. Anuradha Diwan was declared a hostile yet it has
come in her statement that accused No.2 Diwan Chand Pruthi used to direct
her to ask Bhag Chand to connect STD/ISD line inspite of the fact that he
was having direct line in his office having STD/ISD facility. A strong
inference can be drawn from this statement of PW-14 Smt. Anuradha Diwan
that there was criminal conspiracy involving accused No. 2 Diwan Chand
Pruthi and Bhag Chand when she stated that despite having a direct line in
his office having STD and ISD facility, accused No. 2 used to direct her to
ask Bhag Chand to connect ISD/STD line and from the personal file of
accused No. 3 Bhag Chand maintained in the office of M/s Cepham
Organics Limited, it is evident that Bhag Chand was working as an Office
Assistant to do the exclusive job of accused No. 2 Diwan Chand Pruthi.
77. Further, the act of accused No. 2 making accused No. 3 as his office
assistant to do his job exclusively and deposition of PW14 Smt. Anuradha
Diwan that despite having STD/ISD facility in his room, the accused No. 2
used to ask her to direct Bhag Chand accused No. 3 to connect STD/ISD line
clearly shows complicity of the accused in the criminal conspiracy.
78. Diwan Chand Pruthi has not explained in his statement under section
313 Cr PC as to why, and which line - with STD/ISD facility, he used to ask
Bhag Chand to connect, when he already had another telephone line
working in his office with STD/ISD facility. Clearly PW14 indicates
existence of a conspiracy. PW3 also proved a special staff memo PW3/B
whereby Bhag Chand was designated special assistant of DC Pruthi.
79. Now I will advert to question number 4, i.e., Whether appellant Bhag
Chand was involved in the conspiracy?
80. Ex. PW3/B conferred the status of office assistant although he is only
senior secondary passed. The reasoning contained in para 76 above - which
also establishes the participation of Diwan Chand Pruthi in the conspiracy
applies with equal force to the case of the appellant Bhag Chand.
81. Though PW14 Smt. Anuradha Diwan was declared hostile, yet it has
come in her statement that accused No.2 Diwan Chand Pruthi used to direct
her to ask Bhag Chand to connect STD/ISD line inspite of the fact that he
was having direct line in his office having STD/ISD facility. A strong
inference can be drawn from this statement of PW-14 Smt. Anuradha Diwan
that there was criminal conspiracy involving accused No. 2 Diwan Chand
Pruthi and Bhag Chand when she stated that despite having a direct line in
his office having STD and ISD facility, accused No. 2 used to direct her to
ask Bhag Chand to connect ISD/STD line. Moreover, from the personal file
of accused No. 3 Bhag Chand maintained in the office of M/s Cepham
Organics Limited, it is evident that Bhag Chand was working as an Office
Assistant to do the exclusive job of accused No. 2 Diwan Chand Pruthi.
82. Bhag Chand has not disputed the evidence of his being asked by
Diwan Chand Pruthi to connect the STD/ISD line, nor disclosed which line
he used to connect in the office of Diwan Chand Pruthi when so ordered by
Diwan Chand Pruthi. The telephone call received by PW16 Shobha Dutta
from a person who gave his name as Lala Ram, asking for Bhag Chand, and
who stated that a CBI raid had taken place in Kidwai Bhawan, and that the
telephone lines of 3716165 should be disconnected which had STD/ISD
connection nails Bhag Chand as a conspirator.
83. I now proceed to examine Whether the appellant Lala Ram was
involved in the conspiracy?
84. There is overwhelming evidence to clinch the issue beyond all
reasonable doubt that it was none other than the appellant Lala Ram who
had made the call from MDF Kidwai Bhawan, which had been received by
PW-16 - wherein he disclosed his identity as Lala Ram calling from MDF
Kidwai Bhawan, and asked for Bhag Chand, and informed that a raid had
been conducted by the CBI at Kidwai Bhawan, and that Bhag Chand should
disconnect the STD/ ISD line of telephone number 3716165.
85. Firstly, the caller had no reason to incorrectly describe his identity, as
he was not aware of the fact that the CBI team was also present at the office
of Cepham Organics. The caller did not know he was talking to an officer
of the CBI. Lala Ram has not stated in his statement under Section 313
Cr.P.C. that any person was inimical to him, and had reason to impersonate
him. Secondly, Lala Ram was, as a matter of fact, at Kidwai Bhawan when
the said call was made and received by PW-16. PW-16 could not have
imagined that there is an employee of the MTNL working in the MDF
Section at Kidwai Bhawan of MTNL with the name Lala Ram. The
statement of the caller that a CBI raid had taken place at Kidwai Bhawan
was true, beyond any shadow of doubt, which a person inside Kidwai
Bhawan would be aware of. PW-17 Mr. S.R. Singh, Inspector, CBI was a
part of the team which conducted the surprise check at Kidwai Bhawan. He
deposed that "Meanwhile I received a telephone call from Sh. K.K. Nair, an
official of MTNL who was a party member of CBI team at office of C-
Pharma Organics and Sh. Nair informed me that one Sh. Lala Ram of MDF
Section has made a call to the office of C-Pharma informing that CBI raid
has been conducted in MDF section and the telephone wires in the office of
C-Pharma organics be removed".
86. The mileage sought to be derived by the appellant Lala Ram from the
testimony of PW-9 KK Nayyar - who stated that "I had not telephone to
anyone but in my presence some testing calls were made by CBI officials",
and that a video recording was done, has no merit. Pertinently, no other
prosecution witnesses stated, and even the Joint Surprise Check memo (Ex.
PW-4/A) does not record, that any video recording had been made during
the surprise check. PW-9 did not see the video recording after the raid; he
also did not name the person who made the video. PW-9 gave his statement
after 8-9 years of the incident. His solitary statement apparently is a result
of a faded memory, or he got confused with some other raid proceedings he
may have taken part in, wherein a video recording may have been made. So
far as the apparent contradiction in the statement of PW-17 and PW-9 -
insofar as PW-17 claimed to have received a call from PW-9, informing that
Lala Ram had made a call to Cepham Organics, while PW-9 stated that he
had not made the call is concerned, once again this minor discrepancy is
immaterial and does not shake the case of the prosecution at its foundation.
Pertinently, PW-9 does not say that no such call was made to PW-17 by
anyone else from the raiding party, or that he did not speak to PW-17 about
the call made by Lala Ram. Once again, it appears to be a case of fading
memory of PW-9, as it was on the basis of the information received by PW-
17 from PW-9, that the CBI team at Kidwai Bhawan identified Lala Ram as
the person responsible for the diversion of the telephone line, and located the
whereabouts of Lala Ram.
87. The appellant Lala Ram claimed that he was not in MDF, Kidwai
Bhawan, but he had gone to the canteen for a tea break-thus, making it
impossible for him to make the call from MDF, Kidwai Bhawan. PW-3, 17,
22 and DW-1 in their statements have stated that appellant Lala Ram had
gone for a tea break at the time the alleged call was made. However, MDF
is on the 9th floor in Kidwai Bhawan, and the canteen is on the 5th floor.
Therefore, it was not difficult for the appellant Lala Ram to go from one
floor to another to make the said call, or go to another floor after making a
call. This argument of the appellant Lala Ram, that he had gone for tea, and,
therefore could not have made the call, does not appeal to the Court.
Appellant Lala Ram could have made the call from anywhere in Kidwai
Bhawan. It was not necessary that he made the call from the MDF section
itself. The message appellant Lala Ram gave to PW-16 was that he was Lala
Ram of MDF section - the purpose of which was to identify himself, so that
Bhag Chand could relate to the said Lala Ram; DW-1 in his examination-in-
chief stated that "On 30.6.1995 at about 11:30 am, I had gone to bring tea
from the canteen situated on the 5th floor where Lala Ram also met me.
Thereafter we had tea there and we remained for about 45 minutes in the
Canteen. There is no telephone in the canteen. Lala Ram did not make any
telephone call in my presence during that period". DW-1 stated that he met
appellant Lala Ram in the canteen at around 11:30 am and the latter was
already present there. According to the Ex. PW-3/A, the CBI officials
started the inspection at 11:30 am; therefore, they must have entered the
Kidwai Bhawan building before 11:30 am. PW-17 stated that "On inquiry I
found that he had left the MDF section before the CBI team had entered the
MDF Section". The possibility that appellant Lala Ram realized that the
CBI officials had entered the Kidwai Bhawan building, and made the call
immediately to Cepham Organics for Bhag Chand, and thereafter left for the
canteen-just before the CBI team arrived in the MDF Section, cannot be
ruled out. It is not the statement of DW-1 that appellant Lala Ram went to
the canteen with him from the MDF Section. Thus, the possibility of him
making the call before coming to the canteen cannot be ruled out on the
basis of his statement.
88. I find no reason to believe that PW-16 Shobha Dutta wrongly or
intentionally named the appellant Lala Ram. Since, she did not know
appellant Lala Ram before the said call, there is no reason for her to know
that a person named Lala Ram works at MDF, Kidwai Bhawan. Similarly,
no plausible reason has been provided for PW-16 to wrongly name the
appellant Lala Ram as the caller, as she has no enmity against him. When
PW-16 did not know of the existence of a Lala Ram in MDF section, she
could not wrongly or intentionally name him. Thus, this arguments stand
rejected.
89. The appellants have placed reliance on Nilesh Dinkar Paradkar
(supra). In this case, the Police tapped the phone and recorded the
conversation of the accused person. On tapping of the telephone, the Police
learnt about the conspiracy the accused persons were hatching. The Police
officers arrested all the accused persons. The voice test identification was
conducted and the Trial Court held the voice to be of the appellant, and the
other co-accused. The Supreme Court held that voice identification is prone
to tampering, doctoring, editing and, therefore, is not wholly reliable. The
conviction of an accused cannot be based purely on the basis of the voice
identification. Thus, Supreme Court acquitted the appellant. However, in the
present case, there was no voice recording, or voice test identification. The
case of the prosecution is not based on any voice recording. Appellant Lala
Ram called Cepham Organics office at the time when the CBI officials were
present, and were conducting the surprise check. His call was received by
PW-16 and he conversed with her. He gave his own identity and place from
where he was calling; the person he wished the message to be conveyed; the
message itself and the factum of the CBI raid taking place at Kidwai
Bhawan. Appellant Lala Ram himself stated that the call was for appellant
Bhag Chand informing him about the raid, and to disconnect the
unauthorized telephone line. This conversation was undertaken by the
appellant Lala Ram with PW-16 being unmindful of the fact that he was
speaking to a police/CBI officer. Thus, Nilesh Dinkar Paradkar (supra) is
of no avail as there could no tampering, doctoring, or editing. During the
raid, a call was received from appellant Lala Ram for the appellant Bhag
Chand.
90. The joint inspection memo dated 30.06.1995 (Ex.PW3/A) prepared at
the MDF Section of MTNL, while referring to Lala Ram clearly records
that, "He also practically demonstrated how he has extended the telephone
No. 3716165 to the line of the disconnected number 3713201 in the presence
of independent witnesses".
91. PW3 B.S.Rawat, who is an independent witness, deposed that Lala
Ram confessed before Inspector S.R.Singh that he had diverted the
telephone line and the technical staff also verified the diversion of lines and
found that the telephone lines were diverted. A demonstration was given on
diversion. C.S.Rajwar (PW-5) also deposed in his examination-in-chief that
he was present along with the raiding party at the office of Cepham organics
Ltd. when a telephone call was received by a lady Sub Inspector and the
caller had identified himself as Lala Ram. The witness deposed that the
caller also informed about his location at Kidwai Bhawan, whereupon CBI
officials went to Kidwai Bhawan and arrested Lala Ram. He identified Lala
Ram in court. The witness further deposed that Lala Ram disclosed how the
wires etc. were fitted for providing this unauthorized telephone connection
in the office of Cepham Organics. In his cross-examination, the witness
further deposed that he had met accused Lala Ram for the first time at the
office of Cepham Organics where he had been brought by CBI at about
12.30 p.m. or 1.00 p.m. that day. PW8 Gajender Sharma was declared
hostile and cross-examined by the learned public prosecutor. He deposed in
his cross-examination that Lala Ram entered the telephone exchange and on
interrogation, Lala Ram admitted that he had unauthorizedly diverted the
lines of telephone No. 3716165 on the disconnected telephone of Cepham
Organics and Lala Ram gave a live demonstration as to how he had diverted
the lines.
92. PW11 D.K.Sharma also deposed that he was asked about Lala Ram
who was not present in the office at that time and during the course of the
raid. Lala Ram entered the MDF room. Lala Ram was taken to one side by
CBI officials. Lala Ram demonstrated in the presence of the witness how he
diverted the telephone number on a disconnected telephone. He also
identified accused Lala Ram in Court. It is interesting to note that all these
witnesses have deposed that Lala Ram was confronted after information was
received from office of the Cepham Organics that a call had been received
from one Lala Ram asking Bhag Chand to disconnect the illegal telephone
connection. Lala Ram demonstrated how he had diverted the telephone line
in question. None of these witnesses were cross-examined by the accused
Lala Ram on this aspect. There was no challenge to their testimony about
the live demonstration given by the accused Lala Ram, as to how the line
had been physically diverted by him. Clearly, a statement made by Lala
Ram to the CBI officials about his involvement would be hit by Section 25
of the Evidence Act. Only that part of his disclosure statement which might
have led to any discovery can be used or proved against Lala Ram.
However, statements made by the witnesses about the live demonstration by
Lala Ram is not a statement within the meaning of Section 25 of the
Evidence Act, and would amount to conduct made relevant by Section 8 of
the Evidence Act and, therefore, admissible in evidence.
93. In State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 742, the
Supreme Court held as under:
"206. We have already noticed the distinction highlighted in
Prakash Chand v. State (Delhi Admn.) (1979) 3 SCC 90
between the conduct of an accused which is admissible under
Section 8 and the statement made to a police officer in the
course of an investigation which is hit by Section 162 Cr.P.C.
The evidence of the circumstance, simpliciter, that the
accused pointed out to the police officer, the place where
stolen articles or weapons used in the commission of the
offence were hidden, would be admissible as "conduct"
under Section 8 irrespective of the fact whether the statement
made by the accused contemporaneously with or antecedent
to such conduct, falls within the purview of Section 27, as
pointed out in Prakash Chand case. In H.P.Admn. V. Om
Prakash (1972) 1 SCC 249, this Court held that:
"Even apart from the admissibility of the
information under Section 27, the evidence of the
investigation officer and the panchas that the
accused had taken them to PW11 (from whom he
purchased the weapon) and pointed him out and
as corroborated by PW11 himself would be
admissible under Section 8 of the Evidence Act as
conduct of the accused.""
94. In Sangili (supra), relied upon by the appellant Lala Ram, the
deceased received a call from the accused, and left the house, and did not
return home on that day. The call was initially answered by the father of the
deceased. A complaint was filed as the deceased did not return home and
was missing. The accused was thereafter arrested. On the basis of the
confessional statement of the accused, some recoveries were made by the
Police, and FIR was registered under Section 302 IPC. The father of the
deceased stated that he had not seen or met the accused before and, thus,
was unable to say whether the accused made the said call, as he could not
recognize the voice. The Supreme Court held that no one had seen the
accused and deceased leave the house together. The Supreme Court held that
certain pieces in chain of events were missing, and the accused could not be
held guilty due to recoveries made pursuant to his statement.
95. Sangili (supra) is of no avail to the appellants, as the chain of events
has been established by the prosecution in the present case, and no piece is
missing. The CBI learnt about the illegal diversion of telephone number
3716165; they conducted a surprise check at the MTNL office at Kidwai
Bhawan and Cepham Organics office in Connaught Place simultaneously;
appellant Lala Ram after learning about the raid called to inform Bhag
Chand of the same, and conveyed that he should disconnect the diverted
telephone line; the phone call was answered by PW-16, who informed, inter
alia, Inspector Ved Prakash about the call and the message left by Lala Ram
for Bhag Chand; PW-9 informed the CBI officials at Kidwai Bhawan about
the same; Lala Ram was confronted by the CBI officials at Kidwai Bhawan,
and he made a confession and gave a demonstration of how he diverted the
telephone connection. Thus, there is a complete chain of events, and each
event leads to another. Hence, the reliance of the appellants on Sangili
(supra) is of no avail.
96. Counsel for the appellant Lala Ram claimed that a Regular Mazdoor
working in MTNL does not have any role in connecting, disconnecting or
re-connecting a telephone line. He made reference to the statements of PW-
18, PW-21 and PW-2. Sh. Devdutt Bansiwal, PW-18, deposed as follows:
"For disconnection on account of non-payment of the bills, the
procedure is that the DNP list from Account Officer comes
directly to the FRS i.e. DNP Operator for disconnection of first
15 days outgoing. SDE/FRS (DNP Operator) sends the same list
to the SDE/Switch Room for disconnection. If the payment is not
made within that period of 15 days then information is sent for
disconnection of incoming calls also in consent with Account
Officer. If the payment is received within six months the Account
Officer send a list for reconnection of the telephone to SDE/FRS
(DNP Operator) and the DNP Operators sends the list to the
Switch Room and the Switch Room after opening the line sends
the jumper letter with reading to SDE/FRS (DNP Operator). If
the amount is not received in six months, then the line is
permanently disconnected from MDF."
97. Further, PW-21, OP Midha deposed as follows:
"After applying for STD/ISD facility on a new connection,
verification of the premises is done by Field Staff. SD (Record)
is the Incharge of MDF who orders for opening the line from
the switch room after physical verification by the field staff.
Divisional Engineer is the Incharge of Switch room. At that time
concerned Accounts Officer was competent to order for
disconnection in case of non-payment. It is correct that
installation work is done in the premises by Line man."
98. PW-2 D.P. Singh stated that "The duties of regular mazdoor are quite
wide (sic.) such as bringing files, assisting the technical persons, and he
does all work assigned to him by his superior officer".
99. Appellant Lala Ram was a regular mazdoor in MTNL. Merely
because the job of disconnecting/ reconnecting or changing the telephone
lines did not fall within the domain of the appellant Lala Ram, it does not
follow that the appellant Lala Ram could have had no role to play in the
conspiracy. Obviously, the connection of the telephone number/ line
3716165 to the non-functional telephone line (earlier used for telephone
number 3713201) - whether done by the appellant Lala Ram, or by any
other employee/ person, was illegal. Such an action could not have been
authorisedly done by any one. Thus, it makes no difference, whether or not
the appellant Lala Ram had the authority to disconnect/ reconnect/change
the telephone lines in the telephone exchange. When a person is aware of
the conspiracy, and he aids and acts in furtherance of the conspiracy, and has
a common intention for the execution of the conspiracy, he would be held
liable for the same.
100. Reliance placed on Shabban (supra) is of no avail to the appellants.
In Shabban (supra), a surprise check was conducted at F-118/8, Batla House
in New Delhi by CBI officials with MTNL officials and independent
witnesses. Two telephone numbers were found to be installed at the
premises with ISD/STD facility. It was found that the two telephone
numbers were sanctioned in the names of two persons residing in 337, B-1,
Batla House and D-40, Batla House respectively, but the telephone numbers
were directed to F-118/8, Batla House in connivance with employees of
MTNL. MTNL employees were found providing STD/ISD facility to
various persons at cheap rates causing loss to MTNL. It was further revealed
that the two telephone numbers were sanctioned on deposit of Rs 30,000 for
each connections in Tatkal category. Two applications with fictitious names
were prepared, and the STD/ISD facility telephones were installed at the
premises of F-18/8 Batla House, causing huge losses to MTNL. The Trial
Court convicted the accused persons. This Court reversed the judgment and
acquitted the accused persons. This Court held that the installation of
telephones at a different place than the application forms would not
constitute the offence under section 420 read with Section 120-B IPC. This
Court further held that A-1 was providing telephone services to persons in
Gulf countries and Saudi Arabia from the house, which belonged to his
sister. However, there was no evidence to connect the A-1 to the premises.
Further, the CBI could not establish the losses suffered by MTNL, as no
bills were provided by them. This Court held that there were huge gaps in
the case of the prosecution and, consequently, the case against the accused
was not proved beyond reasonable doubt. Thus, they were acquitted.
101. Shabban (supra) is a case decided on its own facts. It is well-settled
that what can be relied upon is the legal proposition settled by the judgment
which emerges as the ratio of the judgment. Each case turns on its own
facts. In the present case, the facts are not identical. The accused Lala Ram
diverted a telephone connection with ISD/STD facility to the office of
Cepham Organics of which accused Diwan Chand Pruthi was the Director.
The CBI conducted a surprise check at the premises of Cepham Organics
and MTNL simultaneously. In the surprise check, they found an
unauthorised diversion of a telephone connection with STD/ISD facility to
the office of Cepham Organics. The present case is also of conspiracy, but
there are not any gaps, as in the case of Shabban (supra). The CBI has
established the connection of the three accused persons in the conspiracy at
hand. The CBI has also established that the phone calls made from the
illegally used number, were to the numbers mentioned in the diary of Diwan
Chand Pruthi, which was seized by CBI on the day of the surprise check.
The role of each of the three accused persons is clear, and stands established.
Thus, there are no gaps in the present case and Shabban (supra) is of no
avail.
102. Learned counsels for the appellants contended that the Joint Surprise
Check memo (Ex. PW-4/A) mentions that PW-16 Shobha Dutta received a
call on the number 3326090 from appellant Lala Ram, whereas in her
statement she does not mention the said number. It was contended that the
number on which the call was received has not been proved on record. The
appellants have not shown how the said failure of the prosecution - to
establish the number of the telephone, on which the call was received from
Lala Ram, prejudices the case of the prosecution. This is for the reason that
it stands established by PW-16 that she received a call from a person who
described himself as Lala Ram, and after conversation with him, PW-9 had
called up PW-17 and informed him of the call received from Lala Ram of
MDF Section. Since PW-16 was not regularly working in the office of
Cepham Organics, and the call was received on the EPABX system, she
would not have remembered the said number while making her statement.
But Ex.PW-4/A records the proceedings in detail as they transpired and
were recorded contemporaneously. It records the telephone number on
which Lala Ram's call was received. The appellants have not been able to
raise any doubt on the authenticity of Ex.PW-4/A. Thus, there is no merit in
this submission.
103. Learned counsels for the appellants submitted that the telephone
number 3716165 was operational from 1990 and, under the alleged
conspiracy, the telephone number was directed to Cepham Organics office
only in December, 1994. The CBI did not provide the details as to whom the
number belonged to, before December 1994, or what the status of the said
number was. In my view, this contention of the appellants is absolutely
inconsequential. The case of the prosecution was that the telephone line
3716165 was a spare line till it was illegally diverted to Cepham Organics.
Thus, there was no necessity for the prosecution to establish its so-called
user prior to its diversion to Cepham Organics.
104. Learned counsels for the appellants contend that the prosecution has
not proved that the amount of Rs. 25,000/- was demanded by, or paid to/
accepted by appellant Lala Ram, as there is no evidence to establish the
same. They contended that there was no recovery of any illegal gratification
from appellant Lala Ram, or from his house. Thus, he cannot be punished
under Section 13 of PC Act. In this regard reliance is placed on Khilli Ram
(supra). No doubt, there is no recovery of bribe from the appellant Lala
Ram. However, the facts of the present case are entirely different. This is
because the conspiracy between the three appellants stands established in the
present case. In the present case, the appellants had entered into a criminal
conspiracy to illegally use the telephone line 3716165 with STD/ISD facility
to cause wrongful gain to the company Cepham Organics of which Dewan
Chand Pruthi was the Director, and to cause wrongful loss to MTNL. The
appellant Lala Ram by his conduct obtained for Cepham Organics of the
appellant Dewan Chand Pruthi pecuniary advantage without any public
interest. To establish the offence of criminal misconduct under Section
13(1)(d)(iii) of the P.C. Act, it is not necessary for the prosecution to
establish that there was a demand followed by acceptance of illegal
gratification.
105. The respondent has relied on the statement of PW-15, Rita Chopra.
She stated that "I used to maintain Day book of the company. The entries in
Day book Ex. PW15/A on dt. 12.12.94 at point A, on dt. 10.1.95 at point A,
on dt. 25.1.95 at point A for an amount of Rs. 12500/- are in my hand. The
first entry of Rs.12500/- is in the name of Chairman and the other two
entries of Rs. 12500/- each are in the name of Sh. Sanjiv". It was for Diwan
Chand Pruthi to explain satisfactorily the purpose of the said withdrawals.
He has failed to give any explanation of the same. A strong inference of a
criminal conspiracy can be drawn from the statement of PW-14 Anuradha
Diwan, wherein she stated that appellant Diwan Chand Pruthi directed her to
ask appellant Bhag Chand to connect the ISD/STD call, despite having a
telephone line with ISD/STD facility in his office.
106. In a case of criminal conspiracy, where direct evidence is seldom
available, the conviction of the accused is on the basis of circumstantial
evidence which completes the chain of events. In the present case, with the
help of circumstantial evidence, it is established by the prosecution that
appellant Lala Ram illegally diverted the telephone line of number 3716165
on another disconnected line. As to why he did the same, if not for monetary
gain to himself, was for the appellant Lala Ram to explain. He has not done
so. In C Sukumaran (supra), the accused/appellant, who was the station
writer at Fort Police Station, Thiruvananthapuram, demanded Rs. 1500/-
from the complainant for releasing certain articles which were taken into
custody by the police. After a complaint was registered, a trap was laid and
the accused/appellant was arrested for the offences punishable under
Sections 7 and 13 (1)(d) of PC Act. The Trial Court convicted the accused
under the aforesaid sections. The High Court partly allowed the appeal.
While convicting the accused under Section 13 (1) (d) of PC Act, the
appellant was acquitted of the offence under Section 7 of PC Act, as there
was insufficient evidence to establish that the accused demanded the illegal
gratification. The Supreme Court held that the prosecution had failed to
prove beyond reasonable doubt that the accused/appellant had accepted the
illegal gratification from the complainant. Thus, the accused was acquitted
under Section 13 (1) (d) of PC Act as well. In the present case, the counsels
for the appellants contend that the burden to prove the demand and
acceptance of illegal gratification was on the prosecution, and the same has
not been discharged. As a result, the appellants should be acquitted for
offence under Section 13 (1) (d) of PC Act. However, the present case is one
of a criminal misconduct covered by Section 13(1)(d)(iii) of the PC Act, and
of a conspiracy. From the afore stated decisions of the Supreme Court, it is
clear that in a criminal conspiracy direct evidence is seldom available, and
conviction is based on circumstantial evidence, as long as a chain of events
is drawn and established by the prosecution. In my view, the prosecution
has established the chain of events and, consequently, a criminal conspiracy
has been established. The prosecution has further established that accused
Diwan Chand Pruthi obtained for his company Cepham Organics pecuniary
advantage without public interest under a criminal conspiracy with accused
Lala Ram and accused Bhag Chand. Thus, charge under Section
13(1)(d)(iii) of PC Act of criminal misconduct against appellant Lala Ram
stands established.
107. On the aspect of the disclosure statement of appellant Bhag Chand
and the confession of appellant Lala Ram before the CBI Officials in the
MDF Room, the appellants submitted that the Trial Court had rightly held
these statements of the two appellants to be not admissible evidence under
sections 25, 26, or 27 of the Evidence Act. They contended as the appellants
have been convicted on the basis of inadmissible evidence. In my view the
trial court has not acted on the basis of the disclosure statements and
therefore there is no force in the said contention.
108. In Nalini (supra), the Supreme Court observed that there can be two
objections to the admissibility of evidence under Section 10. The two
objections are (1) the conspirator whose evidence is sought to be admitted
against co-conspirator is not confronted or cross-examined in Court by the
other co-conspirators, and (2) prosecution merely proves the existence of
reasonable ground of the conspiracy. The Supreme Court further held that
the prosecution has to produce independent witnesses to establish the
existence of a conspiracy and to corroborate the statement of the co-
conspirator. In the present case, the appellants contended that the two
aforesaid conditions were not satisfied by the prosecution. Firstly, appellant
Lala Ram was not cross-examined in Court by the other appellants. Thus,
the objection to admissibility of the statement of Lala Ram should be
sustained. In my view, since the statement of appellant Lala Ram was held
to be inadmissible in view of Sections 25 and 26 of the Evidence Act, there
was no reason for appellant Lala Ram to be cross-examined in the Court by
the other appellants/co-conspirators. Secondly, the appellants submitted that
the call made by appellant Lala Ram for appellant Bhag Chand at the time of
the surprise check is not corroborated with help of evidence. This
submission stands rejected as it is already established that appellant Lala
Ram made the call on the day of the surprise check to disconnect the
unauthorised line of telephone number 3716165.
109. In Sukhjit Singh (supra), the Supreme Court held that all the
incriminating evidence is to be brought before the accused persons under
Section 313 Cr PC. In Sharad Birdhichand Sarda (supra), the Supreme
Court held that the evidence which is not put to the accused under 313 Cr
PC must be completely excluded from consideration. The appellant, in the
present case, contend that the entire incriminating evidence was not put to
them under Section 313 Cr PC. On perusal of the 313 CrPC statements of all
the appellants, it is evident that all the incriminating evidence was put to
them as questions regarding the conspiracy, the call by appellant Lala Ram,
the payment of Rs. 25,000 per month, etc were put to them. Thus, there is no
force in the argument of the appellants that all the incriminating evidence
was not put before them. Raj Kumar (supra) is also of avail to the
appellants.
110. In Abdul Sufan (supra), the Gauhati High Court observed as follows:
"11. In a criminal jurisprudence, the case of the prosecution
should rest on its own strength and not in the absence of
explanation plausible defense by the accused. While dealing
with serious question of guilt or innocence of persons charged
with crime, the following general rules have been laid down for
the guidance of courts:- (i) The onus of proving everything
essential to the establishment of the charge against the accused,
lies on the prosecution; (2) The evidence must be such as to
exclude to moral certainty every reasonable doubt of the guilt of
the accused; (iii) In matters of doubt it is safer to acquit than to
condemn; for it is better that several guilty persons should
escape than that one innocent person suffer; (iv) There must be
a clear and unequivocal proof of the corpus delicti; (v) The
hypothesis of guilt should be consistent with all the facts proved.
With due respect, we may add that it is not the duty of courts to
make up the loopholes of the prosecution howsoever suspicious
the involvement of the accused in the crime. In other words, this
Court cannot take over the duty of the prosecution. We
understand that a reasonable doubt is not an imaginary, trivial
or merely possible doubt, but a fair doubt based on reason and
common sense."
111. The High Court held that a reasonable doubt should be based on
reason and common sense. The 'doubt' cannot be imaginary, trivial or
merely possible doubt. In Mahender Singh Dhaiya (supra), this Court held
that the case of the prosecution should stand on its own feet, and cannot take
advantage of the defence of the accused. In Haresh Mohandas Rajput
(supra), Supreme Court observed as follows:
"15. In Sharad Birdhichand Sarda v. State of
Maharashtra AIR 1984 SC 1622, this Court observed that it is
well settled that the prosecution's case must stand or fall on its
own legs and cannot derive any strength from the weakness of
the defence put up by the accused. However, a false defence
may be called into aid only to lend assurance to the court
where various links in the chain of circumstantial evidence
are in themselves complete. The circumstances from which the
conclusion of guilt is to be drawn should be fully established.
The same should be of a conclusive nature and exclude all
possible hypothesis except the one to be proved. The facts so
established must be consistent with the hypothesis of the guilt of
the accused and the chain of evidence must be so complete as
not to leave any reasonable ground for a 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.
16. The Court also discussed the nature, character and essential
proof required in a criminal case which rests on circumstantial
evidence alone and held as under:
(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 guilt 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 hypothesis
except the one to be proved; and
(5) 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."
112. The prosecution, in the present case, has proved its case beyond
reasonable doubt. The same is based on evidence, reason and common
sense. The case of the prosecution stands on its own feet and does not take
advantage of the defence of the accused persons/appellants.
113. Lastly, the appellants have relied upon Dnyaneshwar Laxman Rao
Wankhede (supra). The Supreme Court held that where there are two
possible views, then the Court should adopt the view which is in favour of
the accused person. However, two views are not possible in the present case.
114. In view of the aforesaid discussion, it stands established beyond all
reasonable doubt that the appellants entered into a criminal conspiracy in
furtherance of their common intention. I find no perversity in the impugned
judgment. The same is, accordingly, upheld. All the appellants are found
guilty under Section 120B, IPC. Appellant Lala Ram is also convicted under
Section 13(1)(d) read with Section 13(2) of this Act. Accordingly, the
appeals are dismissed. The appellants are directed to surrender forthwith.
(VIPIN SANGHI)
JUDGE
FEBRUARY 26, 2016
