Karnataka High Court
Central Bureau Of Investigation vs Sri Padmanabha on 27 May, 2021
Author: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MAY, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
CRIMINAL APPEAL NO.271/2010
BETWEEN:
CENTRAL BUREAU OF INVESTIGATION
(INVESTIGATING AGENCY CONSTITUTED UNDER DELHI
SPECIAL POLICE ESTABLISHMENT ACT, 1946)
REPRESENTED BY SUPERINTENDENT OF POLICE
ANTI-CORRUPTION BRANCH
NO.36, BELLARY ROAD
GANGA NAGAR
BENGALURU-560 032.
... APPELLANT
(BY SRI P.PRASANNA KUMAR, ADDL. PUBLIC PROSECUTOR)
AND:
1. SRI PADMANABHA
S/O BASAVACHARI,
NO.699, 1ST CROSS
PAPPARAM STREET
MYSURU.
2. SRI RAMESH
S/O HARIDAS JOSHI
NO.2019, BRINDAVAN GARDEN
BASAVANAPURA,
NEAR RAILWAY STATION
MYSURU.
3. SRI CHELUVARAJU M.,
TOA (PHONES), TELEPHONES
2
TELEPHONE EXCHANGE
NAZARBAD, MYSURU.
4. SRI RAMUNNI KUTTY P.K.
PHONE MECHANIC
O/O SDE CENTRAL
D.D.URUS ROAD
MYSURU.
5. SRI ABDUL JABBAR
S/O A.K.USMAN
WHITE HOUSE, PONNIUM WEST
TELLICHERRY, KANNUR DISTRICT
KERALA.
6. SRI SAJJAD HAIDER
S/O SRI. T. HAIDER
MUBARAK MAHAL, THUMBE
BANTWAL TALUK, D.K.DISTRICT.
... RESPONDENTS
(BY SRI I.S.PRAMOD CHANDRA, ADVOCATE FOR R4 TO R6;
SRI NATARAJ BALLAL, ADVOCATE FOR R3;
SRI VENKATESHWARAN, ADVOCATE-AMICUS CURIAE FOR
R1 AND R2)
THIS CRIMINAL APPEAL IS FILED UNDER SECTION
378(1)(3) OF CR.P.C PRAYING TO SET ASIDE THE JUDGMENT
DATED 12.06.2009 PASSED IN SPL.C.C.NO.38/2004 ON THE
FILE OF THE XXXII ADDL. CITY CIVIL AND SESSIONS JUDGE
AND SPL.JUDGE FOR CBI CASES, BENGALURU (CCH-34)
ACQUITTING THE RESPONDENT/APPELLANT FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 120B AND 420 OF IPC AND
SECTION 25(c) OF INDIAN TELEGRAPS ACT AND SECTION 13(2)
R/W 13(1) (d) OF PREVENTION OF CORRUPTION ACT, 1988.
THIS CRIMINAL APPEAL HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.04.2021 THIS DAY, THE
COURT PRONOUNCED THE FOLLOWING:
3
JUDGMENT
This appeal is filed by CBI against the order of acquittal
passed in Spl.C.C.38/2004 on the file of XXXII Additional City
Civil and Sessions Judge and Special Judge for CBI Cases,
Bengaluru (CCH.34) vide judgment dated 12.06.2009.
2. The factual matrix of the case is that the CBI police
had filed the charge sheet against the respondents/accused for
the offence punishable under Section 120B read with Section
409 of IPC and Section 13(2) read with Section 13(1)(c) of the
Prevention of Corruption Act, 1988. The charges levelled against
the accused persons by the prosecution are that accused No.1
Sri. S.Mylaraiah was the Senior Technical Supervisor, RSU, MDF,
Nazarbad parented to OCB Main Exchange, Gokulam, Mysuru
where accused No.2 Sri. Padmanabha was the Contract Labourer
and accused No.3 Sri. Ramesh was the Contract Labourer at OCB
Main Exchange, Gokulam. Accused No.4 Sri. Yellappa was the
Sub-Inspector (O) at O/o SDE, Telecom, Siddarthanagar,
Mysore. Accused No.5 Cheluvaraju was the Telephone Operator
at Telephone Exchange, Nazarbad. Accused No.6
Sri. P.K.Ramunni Kutty was the Phone Mechanic at O/o SDE
(Central), D.D.Urs Road, Mysore. Accused No.7 Sri. Abdul
Jabbar R/o Tellicherry and a friend of accused No.5 was working
at Riyadh, Saudi Arabia, Accused No.8 Sri. Sajjad Haider and
accused No.9 Mansoor Ahmed were residents of Thumbe near
Mangalore.
3. It is the allegation against the accused persons that
accused No.1 is the mastermind, who conspired with other
accused persons and in pursuance of the said conspiracy, on
extracting information about the five spare telephone numbers
with STD/ISD facility in the system of RSU, MDF, Nazarbad,
tampered and diverted them for illegal use to Bhagyalakshmi
STD/PT Booth, Desika Road, Mysuru from 11.03.1997 to
24.06.1997, Chamundi Vasathi Gruha Lodge, Chandragupta
Road, Mysuru from 11.04.1997 to 31.05.1997 and Hotel Sree
Raghu Nivas near Ranjith Talkies, B.N. Road, Mysuru from
16.06.1997 to 24.06.1997 and utilized the lines illegally for
connecting/inter-connecting thousands of ISD/STD calls between
Riyadh and Dammam (Kingdom of Saudi Arabia) and India and
caused wrongful loss to the tune of Rs.71 lakhs to the
department and corresponding wrongful gain for themselves. In
pursuance of the criminal conspiracy, accused No.1 on
11.03.1997 at 16.51 hours diverted the working STD/PT number
No.420337 to Bhagyalakshmi STD/PT Booth for illegal use.
4. Accused No.5 Sri.M.Chaluvaraju and accused No.6.
P.K.Ramuuni Kutty were jointly operating Bhagyalakshmi STD/PT
Booth since February, 1997 which was hired by accused No.5
from Sri.B.Rajesh. Accused No.7 Sri. Abdul Jabbar, who was the
friend of accused No.5, then working at Riyadh, during the first
week of March 1997 suggested to accused No.5 for arranging
telephone lines to connect/inter-connect calls between Riyadh
and India. Accused No.5 asked accused No.6 to approach
accused No.1 and arranged telephone lines for such use.
Accused No.6 met accused No.1 and requested for two telephone
lines with STD/ISD facility for the above purpose. Accused No.1
agreed to it and accused No.1 extracted details of the four spare
telephone numbers in the system of RSU and arranged to divert
two numbers alternatively to Bhagyalakshmi STD/PT Booth for
illegal use. For this purpose jumperings at RSU, MDF at the
equipment points of the spare numbers were done by accused
No.2 Sri. Padmanabha, at the instance of accused No.1 for
monetary considerations. Further, accused No.3 Sri. Ramesh at
the instance of accused No.1 used to remove the detailed billing
print out of spare numbers from OCB Main Exchange, Gokulam
for preventing them from being dispatched to accounts officer in
order to prevent detention of line diversion, for monetary
considerations. The lines diverted to Bhagyalakshmi STD/PT
Booth was used by accused Nos.5 and 6 for connecting and
inter-connecting STD/ISD calls between Riyadh and India on
behalf of accused No.7 from 11.03.1997 to 24.06.1997. For the
calls connected as such, accused No.7 used to send payments to
accused No.5, every fortnight, through his father
Sri. A.K.Usman. The amount paid as such were shared among
accused Nos.1 to 6. Meanwhile, accused Nos.8 and 9 were
introduced to accused No.1 by Sri. D.P.R.Shekar, SSO during
March 1997. They were in search of illegal telephone lines for
connecting calls to Dammam. During the first week of April
1997, accused No.1 introduced accused Nos.8 and 9 to accused
No.6 at Bhagyalakshmi STD/PT Booth and arranged to connect
calls for them to Dammam from the said Booth. As such,
accused Nos.5 and 6 had connected calls to numbers at
Dammam, on behalf of accused Nos.8 and 9 during the first ten
days of April, 1997 and received payment for it. On 11.04.1997,
when accused Nos.8 and 9 met accused No.1 and expressed
desire to go back, the later asked them to stay back and called
accused No.4 Yellappa and asked him to arrange a room in some
hotel falling in his work area, for the stay of accused Nos.8 and 9
for having an independent operation on diverted telephone lines.
Subsequently, on 11.04.1997 accused Nos.1 and 4 went to
Chamundi Vasathi Gruha Lodge, along with accused No.8 and 9
and booked room No.1 for stay of accused No.8 in the fictitious
name of Sri. P.Manoj, Telephone Department, Mangalore and
installed a two line Tatafone in the said room. Further, at the
instance of accused No.1, accused No.4 had employed
Sri. Chikkanna and Rachaiah, linemen to connect two cable pairs
to the Tatafone from the nearest distribution point and paid
them for it. Further, accused No.1 had diverted two spare
telephone lines to the above said lodge and allowed accused
Nos.8 and 9 to operate from 11.04.1997 connecting calls to
Dammam and received payments in return. During such stay of
accused Nos.8 and 9, accused Nos.1 and 4 were regular visitors
to the lodge and accused No.4 was attending to the faults that
occasionally arose in the telephone lines, at the instance of
accused No.1. On 31.05.1997, accused Nos.8 and 9 were asked
to vacate the room by the lodge owner. On vacating the room,
they met accused No.1, and expressed desire to go back and
again accused No.1 asked them to stay back and on 16.06.1997,
arranged room No.2 at Hotel Sree Raghu Nivas for their stay
with the help of accused No.4. There also accused No.4
arranged to connect two cable pairs from the nearest distribution
point, to the two line telephone instrument installed for the use
of accused Nos.8 and 9, by employing Chikkanna and Rachaiah.
Accused Nos.8 and 9, operated the telephone in the Hotel room
from 16.06.1997 to 24.06.1997 and at that time, the diversion
was detected. During the period of illegal diversion of lines,
accused No.1 used to test and interrogate the spare telephone
lines from the computers terminal "TY 003" of RSU, MDF,
Nazarbad frequently for the purpose of ensuring their working in
the good condition. By the above acts, accused Nos.1 to 9
caused wrongful loss to the tune of Rs.71 lakhs to the
Department of Telecom and derived corresponding wrongful gain
for themselves and thereby committed offences alleged against
them.
5. In order to prove the charges leveled against them,
the charges were framed against the accused persons and
accused persons denied the charges and claims for trial. The
prosecution in order to prove the charges leveled against the
accused, examined P.W.1 to P.W.26 and marked Ex.P1 to P85
and material objects as M.O.1 to M.O.4. After the closure of the
evidence of the prosecution, the statement of the accused under
Section 313 of Cr.P.C. was recorded. The accused neither
examined any witness nor got marked any documents. Learned
Trial Judge, after concluding the trial, heard the arguments of
the prosecution as well as the defence and acquitted all the
accused persons.
6. This Court would like to make it clear at this stage
itself that accused Nos.1, 4 and 9 passed away during the
pendency of the proceedings and case against accused Nos.1, 4
and 9 was abated and the remaining accused persons faced the
trial. The CBI being aggrieved by the judgment of the acquittal,
filed the present appeal before this Court.
7. The main contention of the CBI before this Court is
that the Trial Court has failed to appreciate the settled position
of law on the aspect of conspiracy. The conspiracies are hatched
always in the darkness and there is no likelihood of getting the
direct evidence to establish the same. The circumstantial
evidence in such cases are sufficient to prove the offences
committed by the accused. It is contended that it is the fact that
four telephones were spared and were not allotted to anybody
else and the same were misused by the accused persons in
conspiracy with each other. It is also not disputed that a
number of ISD/STD calls were made through the said telephone
numbers. It is also not disputed that ISD/STD calls so made
have resulted in loss to the department. The Trial Court has
erred in disbelieving the evidence on clumsy ground,
particularly, P.W.6 and P.W.13 with whom extra-judicial
confessions was made by the accused persons. The Trial Court
also has committed an error while discussing in para Nos.11 to
14 of the judgment that P.W.6, in order to save his skin, has
made accused Nos.2 and 3 as scape-goats and PW.6 was
required to suppress the spare telephone numbers when the new
Telephone Exchange was installed. The said observations of the
Trial Court has no legal force and the Trial Court has not given
any findings as to how the extra judicial confession made by
accused Nos.2 and 3 are inadmissible in evidence. The Trial
Court has also observed that accused No.2 was working under
accused No.1 and as such he has to obey the command of
accused No.1 during the course of his duty. Moreover, the trial
Court has erred in discarding the evidence of PW.6 and PW.13,
who have proved extra-judicial confession.
8. The other contention of the appellant is that the Trial
Court has based its findings on the assumptions and
presumptions rather than appreciating the settled position of law
that all citizens of India, whether an employee including police
officials or others are independent witnesses and evidence
deposed by all of them are admissible in evidence. Just because
PW.6 was required to suppress the spare telephone numbers
when the new telephones were installed, does not permit
automatically anybody to misuse by illegally using the same for
some other personal benefits. Similarly, if accused No.2 is
working under accused No.1, law does not allow him to obey the
illegal commands issued by his superior. Inspite the prosecution
has produced the voluminous documents to establish the
involvement of all the accused, the Trial Court failed to
appreciate the evidence in a proper perspective and has
committed an error in acquitting the accused.
9. Learned counsel appearing for the CBI also in his
arguments vehemently contend that the Trial Court has failed to
appreciate the material available on record, and also failed to
take note of the fact that a loss to the tune of Rs.71 lakhs was
caused to the department. The Trial Judge failed to believe the
evidence of P.W.6 and P.W.13 only on the ground that they are
the co-employees of the very same department. The Trial Court
also committed an error in coming to the conclusion that there
are no evidence against accused Nos.7 to 9. The Trial Court also
comes to the conclusion that the contract labourers are not
having the knowledge. P.W.1 and P.W.2, who are the Vigilance
Officers deposed with regard to detecting the misuse of
telephone connections. It is also evident that five spare
telephone numbers are kept in use but they were not allotted.
10. It is further contended that P.W.3 deposed that
accused No.3 having details of command. P.W.4 and P.W.5
speaks with regard to jumperings. It is not in dispute that
accused Nos.2 and 3 were working under accused No.1. The
findings given by the Trial Court is against the evidence of PW.6
and PW.13 and their evidence has also been discarded. It is the
specific case of the prosecution that accused No.3 has not
intentionally taken the print out in respect of the telephone
instruments which have been used and evidence of PW.3 is very
clear that accused No.3 also made the confession statement
before PW.13. The Trial Court also failed to consider the
evidence of P.W.17 and P.W.18, who have deposed against
accused Nos.5 and 6. The Trial Court failed to appreciate the
documentary evidence produced before the Trial Court,
particularly Ex.P49 and mahazar was conducted and seizure was
made in the presence of PW.6. PW.10 also identified accused
No.5. It is further contended that PW.1 also deposed against
accused Nos.8 and 9 and the Trial Court not appreciated the
documentary evidence relied upon by the prosecution. The
reasons assigned by the Trial Court are not correct. Hence, it
requires interference of this Court.
11. Learned counsel appearing for accused No.5, who
has been arraigned as respondent No.3 in this appeal has filed
his written arguments contending that accused No.5 was also an
employee of the Department of Telecom and the allegation in the
charge sheet was that he was jointly operating along with one
Sri. P.K.Ramunni Kutty, who is an accused No.6 the STD/PT
Booth since February, 1997 and the same was hired from one
Sri. B.Rajesh and accused No.5 was collecting the money from
accused No.7 once in 15 days through Sri. A.K.Usman, who is
the father of accused No.7 and same was shared by accused
Nos.1 to 6. The allegation against accused No.5 is that he had
used Bhagyalakshmi STD/PT Booth for the purpose of diverting
the spare numbers and using the same for connecting the
international calls to Dammam during the said period and in this
regard, the person, who could speak is the P.W.17, the owner of
the said telephone booth.
12. On perusal of evidence of P.W.17, he has not spoken
anything about accused No.5 at all. The next witness is PW.18,
who admits that he got sub-leased the STD/PT from P.W.17 for a
period of one year under the deed of agreement dated
01.10.1996 (Ex.P.50) and admits his signature. Having perused
Ex.P.50, the same cannot be a sub-lease. PW.18 also
categorically admits that the same cannot be a sub-lease in
terms of the agreement - Ex.P50. Even according to PW.16, the
I.O. deposes that Bhagyalakshmi STD/PT was operated by
P.W.12 and not accused No.5. Thus, there is no incriminating
material against accused No.5. The Trial Judge in detail
discussed with regard to incriminating evidence of accused No.5
and has rightly acquitted the accused and there are no grounds
to convict the accused.
13. Learned counsel appearing for respondent Nos.4 to 6
i.e., accused Nos.6, 7 and 8 vehemently contend that it is the
case of the prosecution that PW.8 detected the conversation,
and internal enquiry was conducted with regard to jumpering
work. P.W.1 to P.W.6 are the official witnesses, P.W.7 to P.W.11
are connected to three places, P.W.12, P.W.13 and P.W.14 are
employees of the very same department. The evidence of
P.W.17 and P.W.18 is also not helpful to the prosecution. The
other witnesses are handwriting expert, sanctioning authority
and the witnesses to the mahazar. Learned counsel referring to
all these witnesses, would vehemently contend that for having
spare numbers are used by these accused persons, no material
is placed before the Court. The persons who made the calls are
also not examined before the Court. The beneficiaries have also
not been identified and examined before the Trial Court. For
having diverted the telephone calls, no materials are placed. The
investigation material collected by the I.O. also not supports the
case of the prosecution. No materials are placed in support of
the fact that the Instruments which are seized were used for the
said purpose. There is conflicting evidence before the Court and
some of the witnesses say that there was only STD facility and
not ISD facility. When there is no ISD facility, the calls cannot
be made to the abroad.
14. Having considered the material on record, there is no
iota of evidence placed before the Court regarding the
conspiracy between the accused Nos.1 to 9 and witnesses also
fails to identify the accused persons. The exact diversion is not
forthcoming. The P.W.1 and P.W.2 state that only loss to the
tune of Rs.71 lakhs was caused to the department. No doubt,
the Trial Court has not discussed in detail and even on
consideration of the prosecution evidence in toto, there is no
material to connect these persons that they were indulged in
committing such offences. Hence, there is no merit in the appeal
to reverse the findings of the Trial Court.
15. Learned counsel for the respondent Nos.1 and 2,
who has been appointed as an amicus curiae in his argument
vehemently contend that the prosecution fails to prove the guilt
of the accused persons. The learned counsel would vehemently
contend that first of all, the allegation of conspiracy has not been
proved and in the absence of proving the conspiracy, they
cannot be convicted for the offence invoked against them.
Hence, there is no merit in the appeal.
16. In reply to the arguments of the learned counsel
appearing for the accused, the learned counsel appearing for the
prosecution would vehemently contend that Exs.P.2 to P.12 are
the authenticated documents to show that the instruments are
used and that the accused persons were indulged in committing
the offences. A fraud has been committed by not issuing the
bills and there is no specification of the address and so also the
spare instruments were used in committing the fraud. In the
cross-examination of the witnesses, nothing is elicited from the
prosecution witnesses. PW.6, in the cross-examination, has
categorically admitted that ISD facility was available. There is
no dispute with regard to the use of the spare telephones. When
such being the case, the learned Trial Judge failed to appreciate
the evidence in a prospective manner. Hence, it requires
interference of this Court.
17. Having heard the learned counsel for the appellant
as well as the respondents, this Court has to re-appreciate the
material available on record. Since, the present appeal is filed
against the order of acquittal, this Court has to examine whether
the material placed by the prosecution connects the accused in
proving the guilt and charges leveled against them.
18. Having heard the arguments of the learned counsel
for the appellant and learned counsel for the respondents, the
point that would arise for the consideration of this Court is :-
1. Whether the Trial Court has committed an
error in acquitting the accused for the charges
levelled against them and whether it requires
interference of this Court ?
19. Before considering the material on record, this Court
has to look into both oral and documentary evidence available
before the Court, particularly the incriminating evidence led by
the prosecution against each of the accused.
20. The CBI examined P.W.1, the Vigilance Officer who
had received the written complaint from the General Manager
stating three telephone connections being misused. Accused
No.1 was controlling the computer operations at RSU and speaks
with regard to the transfer of telephone exchange to RSU, 4
telephone connections were inadvertently not transferred. Four
telephones were given to private public call offices
unauthorisedly. It is also his evidence that one Mr.Joshi was in
charge of Gokulam Main Exchange. One Technical Supervisor by
name Mylaraiah, accused No.1 was controlling the computer
operations at RSU. In the course of enquiry he came to know
that while shifting of telephones from main exchange to RSU,
four telephone connections were inadvertently left untransferred
at the RSU. He found that the left four telephones were given to
private public call offices unauthorisedly. For this purpose, the
jumper wires were used at the MDF (Main Distribution Frame).
It had taken place in RSU, Nazarabad station. It was accused
No.1 Mylariah who was in charge of Nazarabad station. He was
assisted by accused No.2 Padmanabha and accused No.3
Ramesh. These two were contract labourers at that time, in
MDF. The approximate calls were 54 lakhs call units and
approximate loss was Rs.71 lakhs. During the preliminary
enquiry with accused No.1, it did not bring out any required
results. He was directed by the Chief General Manger to lodge
the complaint with the CBI. Accordingly, he lodged the
complaint dated 18.08.1997 with the CBI in terms of Ex.P.1.
21. In the cross-examination, P.W.1 admits that
Technical Supervisors and GTO's are technically trained in the
area of telecommunications. He is not sure about the suggestion
that the working telephones and spare telephones i.e., non-
working telephones come under the control of main telephone
exchange in Gokulam. He admits that he has not made any
enquires with Mr.Sharma, A.E. External and Mr.Joshi, A.E.
internal. He volunteers that his visit to Mysore was only for fact-
finding purpose.
22. P.W.2 Sri M.R. Subbakrishna was working in
Vigilance Section as Sub-Divisional Engineer. In his evidence he
says that there was report from General Manger,
Telecommunications, Mysore regarding abnormal reading of four
spare telephone numbers and one working telephone. He
himself and P.W.1 visited Gokulam Telephone Exchange and also
Nazirabad RSU. The term "spare indicator" means a telephone
number which is not allotted to the subscriber but which is ready
for allotment. So far as these four spare indicators are
concerned, though they were removed from the records with a
view not to allot, however, they were not actually removed from
service by giving command to the equipment. Therefore, they
could be very much put in service. With a view not to make
those four numbers not available for service, they should have
been suppressed in the equipment itself. They also made oral
enquiries with contract labourers Mr.Ramesh, Padmanabha,
Chikkanna and other four members. They also examined
deceased accused No.1 Mylaraiah who was the Senior Technical
Supervisor of RSU, Nazirabad. He also sees the activity report of
telephone numbers at Exs.P.2, 3, 4 and 5 which have been
shown and also D23, 24, 25 and 26. He also identifies the other
printouts as Exs.P.6 to 11. He also says that accused No.3
Ramesh has given statement before him and the same is marked
subject to objection as Ex.P.13. He was subjected to cross-
examination.
23. In the cross-examination, he admits that so far as
Nazarbad RSU is concerned, it was parented to Gokulam OCB
Exchange. He admits that if any number is given from Nazarbad
RSU, that would be found in Gokulam OCB Exchange. He admits
that the main control and the data of such telephone number
given from Nazarbad Exchange would be available with Gokulam
OCB Exchange. He admits that when four spare numbers were
there in Nazarbad Telephone Exchange, it was the duty of the
concerned officer at Main Exchange to suppress those four
numbers. The meaning of 'suppression' is making it non-
functioning in the language of telecommunication. He admits
that STD and ISD facility would be available only on the basis of
password command given at the Main Exchange. He further
admits that STD and ISD cannot be tampered in a RSU. Smt.
Shylaja the JTO has given a statement before him in the course
of his enquiry. He admits that he has not verified whether all
the four spare numbers had ISD facility. But on examination of
the printouts, he came to know that they were having STD and
ISD facility. It is suggested that accused No.3 has not given any
such statement in terms of Ex.P.13 and the same was denied. It
is suggested that there are other real culprits and he knew their
names and that he has purposely not given the complaint
against them and the same was denied.
24. P.W.3 was working as JTO, OCB, Gokulam, Mysore.
In his evidence he says that five telephones were showing
abnormal meter readings and he had given direction to accused
No.3 to take the printout of the bills and the bills of these five
numbers were excluded. He says that the same shows that
accused No.3 had knowledge of the meter readings. He had the
knowledge about ESAB command in computer for checking
telephone line and ABOIL and TAXIN. Accused No.3 knows
about the command to take printouts of detailed bills. Before his
coming to that exchange, accused No.3 had been working there
itself. Ex.P.15 is identified by him, which runs to 18 sheets. All
these printouts had been taken by accused No.3 as per his
direction and again he says that all these printouts pertaining to
the telephone numbers stated above by him were taken out by
him and not by accused No.3 Ramesh. Accused No.3 had been
in the official practice of taking out the printouts of other
telephone numbers. So far as these five telephone numbers are
concerned, accused No.3 had not been taking out the printouts.
When L.D. Joshi told him to take out the print outs, he had
directed accused No.3 to take out the printouts of all the
telephone numbers. He had taken out the printouts of all the
telephone numbers but had excluded to take out the printout of
these specific five telephone numbers. Therefore, he took out
the printout of those five telephone numbers. He verified the
fortnightly meter reading of crossbar numbers at Ex.P.16 in
respect of the said five telephones. Ex.P.16 shows the units of
calls made during each fortnight. He gave a report in terms of
Ex.P.18. Accused No.3 Ramesh knows how to give commands of
TAXIN, ABOIL and ESAB. He was subjected to cross-
examination.
25. In the cross-examination, he admits that the duties
of accused No.3 were those of the peon like cleaning the
premises, attending the phones, taking of detailed bill prints. He
says that he had given oral instructions to accused No.3 to take
bill printouts as per the instructions of L.D. Joshi. He had not
given any written instructions to accused No.3. He does not
know the educational qualification of accused No.3. He admits
that no training has been given to accused No.3 regarding
operation of computers. He also admits that he does not
remember as to how many persons were working in switch room
during the period of offence. It is suggested that accused No.3
had not been doing the work of taking out detailed billing
printouts and the same was denied. It is suggested that accused
No.3 did not have the knowledge to take out such print outs and
that he had not given training to him to take prints outs and the
same was denied. It is suggested that L.D. Joshi and accused
No.1 Mylaraiah were involved in diversification of telephone lines
in question and that he know about the alleged conspiracy and
the same was denied. It is elicited that he does not know who
was in charge of "Ty-002" X Bar Exchange as on 29.04.1997.
He does not know who was in charge of "CV003" and "CV004" on
the concerned dates. He admits that one cannot find out as to
who actually operated the system as appeared in Ex.P.17.
26. P.W.4 is the Sub-Divisional Engineer. In her
evidence she says that during the month June 1997, abnormal
meter reading were observed by the Accounts Officer, Telephone
Revenue Authority. The status of five numbers out of four are
mentioned in the FIR. P.W.4 says that accused No.2 connects
the jumpers. It is her evidence that she contacted deceased
accused No.1 over phone and directed him to find out the status
of these five telephone numbers and his reply was that they
were in working condition and there was no addresses pertaining
to those telephone numbers. She directed accused No.1
Mylaraiah to verify the jumper at MDF and his reply was that
there was no jumper. Thereafter, all the five numbers were kept
under observation. Subsequently, those numbers were deleted
from the system. Hence, she gave report in terms of Ex.P.20.
She identifies accused No.2 Padmanabha and says that he was
working as a casual labourer in Nazarabad RSU. She was
subjected to cross-examination.
27. In the cross-examination, she admits that whenever
any subscriber wants STD and ISD facilities, he has to give
application to commercial officer and it will be routed and come
to them for execution. Whenever any ISD facility is given to a
subscriber the STD facility also follows it. In respect of these
four numbers, they did not have ISD facility. They had only STD
facility. She has not given any ISD facility to any of the above
stated telephone numbers. So far as creation and suppression
of telephone numbers are concerned, she has to receive
directions from the higher officer and then only she can act upon
in that regard. She has not gone to RSU Nazarabad at any point
of time. She admits that it was accused No.1 who told her about
the jumpering work that was done by accused No.2.
28. P.W.5 K. Balasubramanya, Sub-Divisional Engineer
in his evidence says that from exchange side to line side they
put jumper wire to inter connect the subscriber to the
equipment. There would be separate jumper wire for each
subscriber. The connection of a particular telephone number can
be changed to some other equipment with the help of jumper
wires. Exs.P.16 and 17 are marked through this witness. There
are no incriminating evidence against any of the accused persons
having perused the evidence of this witness.
29. P.W.6 Lakshmana Dattatreyea Joshi, Divisional
Engineer in his evidence he says that there were two RSUs - one
in Nazarabad and other in Vishveshwaranagar. Accused No.1
Mylaraiah was the Technical Supervisor in RSU, Nazarabad. The
staff working in Nazarabad RSU were aware of the fact that the
three new numbers had not been suppressed in Gokulam Main
Exchange. It is his incriminating evidence that accused Nos.2
and 3 stated that they acted according to the instructions of
accused Nos.1. Accused No.2 stated that accused No.1 paid him
Rs.10,000/- once and Rs.20,000/- again. He was subjected to
cross-examination.
30. In the cross-examination, he admits that all the four
numbers are standing in the name of Director, CFTRI. They
were working lines. Once they were restored back to CFTRI
office, they started to function there itself. It is elicited that
J.T.Os will also have the powers to do that work. It is not SDE
alone who does it. He admits that suppression of the number
had to be made in Gokulam Main Exchange itself and not in
Nasarabad, RSU. He admits that before the police he has stated
that it was JTO Shylaja who should have suppressed them. But
it is also the cumulative responsibility of himself, herself and
accused No.1 who should have the duty of suppressing them.
He also admits that he has not received any requisition with a
request for giving ISD facility in respect of three numbers. He
admits that when there is no ISD facility to a telephone and
when that telephone is covered by area transfer, and if such
telephone requires ISD facility when that requisition comes from
the subscriber, in that case written intimation regarding
providing that facility will be given. It is also suggested that he
himself and accused No.1 Mylaraiah colluded with the other
lineman Yellappa, Chikkanna and Rachaiah and diverted the lines
and misappropriated the funds and the said suggestion was
denied.
31. P.W.7 Sri B.L. Ram Mohan, STC-PC holder, in his
evidence he says that he gave complaint to the telephone
department in terms of Ex.P.24. There is no incriminating
evidence against any of the accused.
32. P.W.8 Annes Ahamed in his evidence he says that
telephone number 420 337 belongs to P.W.7. When the misuse
of the number by Bhagyalakshmi telephone booth was enquired
and when the same was tried from two other booths, the facility
was not available but from the third booth when the call was
made he realized that both carried the name of Bhagyalakshmi
and there is no any incriminating evidence.
33. P.W.9 speaks with regard to Bhagyalakshmi STD
booth pertaining to Papegowda and he has not supported the
case of the prosecution.
34. P.W.10 in his evidence he says that lodge Chamundi
Vasathi Gruha belongs to his wife and he says that in the month
of April, 1997 when he went to room No.1, he saw a person and
a telephone instrument. He also says that they had not allowed
any telephone connection in any room of the lodge. A person
came to him and asked for return of the telephone instrument
and he refused to give it back to him as he had not produced
any documents.
35. P.W.11 R. Raghurambhat was the owner of Raghu
Nivas hotel. In his evidence he says that there is no any
telephone facility in the hotel. Room No.2 was allowed to one
Manoj, a vegetable merchant and another Sajjad Ahamad in
1997. Those two stayed together in the lodge once for five days
and other time also for five days. They had got a phone
installed in that room without our knowledge. The telephone had
got the facility of only outgoing calls. Two people by name
Mylaraiah and Yellappa used to come to their restaurant often
and they used to meet Manoj and occasionally the other person
in the restaurant and used to go back. He says that none of
these accused Nos.2, 3, 5, 6 and 8 were staying in the room in
his lodge in that year. So far as Manoj is concerned, later he
came to know that his real name was Mansoor Ahamad.
36. P.W.12 T.G. Nagarajaiah, JTO Hunsur Telephone
Exchange in his evidence he says that one D.P.R. Shekar
approached him for two telephone connections.
37. P.W.13 Mrthyunjaya Kumar in his evidence he
speaks with regard to taking out the printouts. He knows
accused Nos.2, 3, 5, 6, 7 and 8. Accused No.3 was working as
casual labourer in Gokulam Telephone Exchange. Accused No.2
was working as casual labourer in Nasarabad RSU. Accused
No.1 was working as Telecom Technical Assistant. That on
27.06.1997 he had gone to the office of L.D. Joshi for some
discussion regarding some other office matter. At that time, he
saw accused No.2 Padmanabha and accused No.3 Ramesh
present there with L.D. Joshi. On that date accused Nos.2 and 3
revealed to L.D. Joshi about the misdeeds, in his presence.
Accused No.2 told to L.D. Joshi that himself did jumpering work
as per the instructions of accused No.1 Mylaraiah. Accused No.2
Padmanabha also stated that accused No.1 Mylaraiah had
assured him that he should not worry about his job and he would
get some other job given to him is some hotel. Accused No.2
also revealed that for that work of jumpering, he received
Rs.20,000/- to Rs.25,000/- from accused No.1. Accused No.3
Ramesh also revealed to L.D. Joshi that accused No.2 should not
send printouts of telephone numbers to the addresses of those
telephone numbers. He also revealed that for that he received
Rs.10,000/- from accused No.1. It is also his evidence that
Vigilance Officers of the department also interrogated accused
No.3 on 24.07.1997. At them time also, he was present and he
gave the statement in terms of Ex.P.13.
38. In the cross-examination, he admits that on his own
he visited the office of L.D. Joshi and his visit was not in
connection with this case. It is suggested that accused Nos.2
and 3 have not given any statement that they have received the
amount and the same was denied.
39. P.W.14 identifies accused No.5 in her evidence as he
was working as Telephone Operator.
40. P.W.15 R.S. Srinivasa, Divisional Engineer (Internal)
says that accused No.1 was working as Senior Technical
Supervisor in the same RSU. There are no complaints with
respect to the above four numbers.
41. P.W.16 is the Investigating Officer who registered
the FIR in terms of Ex.P.40 and conducted the search and
seizure of the telephone bills seized from accused No.5. Accused
No.6 gave the voluntary statement in terms of Ex.P.45. M.Os.1
to 3 are recovered from accused No.6. He also obtained the
sanction order against accused Nos.1, 4, 5 and 6. He also seized
the documents from accused No.4.
42. In the cross-examination, a suggestion was made
that whether M.Os.1 to 3 are available exclusively in telecom
department and his reply is that telecom department does not
provide any instruments like M.Os.1 to 3. It is suggested that
M.O1 was not given by the wife of accused No.6 in his presence
and he had not seized it from accused No.6 and the said
suggestion was denied. It is suggested that M.Os.2 and 3 were
not seized by him from accused No.6 which were handed over to
accused No.6 by the same lady and the same was denied.
43. P.W.17 in his evidence he says that he was running
STD telephone booth and he entered into an agreement sub-
letting the same to Rajesh that every month he should pay
Rs.6,000/- to him. He also took the security deposit of
Rs.50,000/- and he identifies the agreement as per Ex.P.50.
There are no incriminating evidence against the accused
persons.
44. P.W.18 Rajesh is the one who took the said booth
from P.W.17. He identifies his signature as per Ex.P.50(a). He
says that he incurred heavy loss in this business and he sub-let
the same to accused No.5 Cheluvaraju and there was a oral
agreement between him and accused No.5 that he should pay
Rs.30,000/- as advance and Rs.250/- per day to him. On the
basis of the agreement, he entrusted both the telephones to
accused No.5 Cheluvaraju with the premises. He identifies
accused No.5. He states that he used to go to the premises
often to collect the amount and for other purposes. He used to
find CW 12 P.K. Shaji and accused No.6 Ramunnikutty in the
said premises whenever he used to visit there. He identifies
accused No.6. When he handed over the said telephone booth
to accused No.5, there was no call conference instrument
attached to STD telephone. From January 1997 to August 1997,
accused No.5 had been running that STD booth. After the CBI
enquiry, he took back the said telephone booth from P.K. Shaji.
He handed over the premises to Pape Gowda 10 or 15 days after
he handed over the premises to accused No.5. When he went to
the said premises, he found call conference instrument attached
to the STD telephone. On enquiry, accused No.5 told him that
the customer can make STD calls from his house itself through
the said STD telephone without coming to the booth and the
business was going on well. As per the agreement between
himself and accused No.5, it was accused No.5 who was to pay
the telephone bills to the department.
45. In the cross-examination, it is elicited that as per
clause 6 of Ex.P.50, he was not supposed to transfer the booth
to anybody else during the period of agreement. It is suggested
that accused No.5 did not pay Rs.30,000/- to him and he did not
hand over the said telephone booth to him and the said
suggestion was denied. In the cross-examination by the learned
counsel for accused Nos.2, 3 and 6 it is elicited that in that booth
he had got two telephone connections i.e., one for coin box
telephone and the other for open STD telephone. It is suggested
that C.W.12 P.K. Shaji was his friend and that he had entrusted
Bhagyalakshmi STD booth to him and the said suggestion was
denied. It is elicited that he does not know whether P.K. Shaji
and accused No.6 were coming together to Bhagyalakshmi
telephone booth but he claims that he used to see them being
present there.
46. P.W.19 S.C. Lohia, hand writing expert, in his
evidence he says that the person who wrote the blue enclosed
writings i.e. Ex.P.57 also wrote the red enclosed writings
Ex.P.53. It is also his evidence that disputed writings has been
red enclosed and marked with blue pencil as Q1 now marked as
Ex.P.53, Q2 to Q109 and Q115 to Q200 in a hand book which is
marked as Ex.P.54. It is also his evidence that he has received
the specimen writing of one Sri M. Cheluvaraju marked by him
as S1 to S5 and the same is marked as Ex.P.57. The specimen
writings of one Abdul Jabbar accused No.7 marked by him as S6
to S50, S50/1, S51 to S140 and S161 to S250 in 226 sheets and
marked as Ex.P.58. The specimen signature of accused No.8 are
marked as S151 to S155 as Ex.P.6. He was subjected to cross-
examination.
47. In the cross-examination he admits that specimen
signatures as per Ex.P.57 are not taken before him. He further
admits that the reasons as per Ex.P.63 are given by him and not
by Mr.Goel. He admits that he has not produced the
photographs of magnified writings referring to the comparison.
Normally they magnify one and a half time or two times which is
sufficient for comparison through microscopic instrument.
48. P.W.20 is the mahazar witness during the search of
STD booth. He says that one H.S. Pujari is also one of the
witness. He identifies the signature as per Ex.P.43(b). He
accompanied the CBI team to Ramunni kutty's house. During
the search they seized some acquirements. Two other
independent witnesses were also present and he signed Ex.P.49.
49. P.W.21 speaks with regard to issuance of sanction
order in respect of accused Nos.1 and 4 to 6. In the cross-
examination, he admits that he cannot say the details of the
documents that he had gone through before according sanction
to prosecute accused No.5. He admits that assuming that Rs.71
lakhs loss was caused, he mentioned the same in the sanction
order in respect of accused No.5.
50. P.W.22, Chief Manager, Syndicate Bank is also the
mahazar witness in respect of residence of accused No.8. He
says that at the time of search, some files were seized by the
CBI team and a mahazar was prepared and he signed the said
mahazar as per Ex.P.69(a). At the time of seizure one of the
witness S.H. Jagajeevan Das also singed the same. Accused
No.8 was present. Once again he accompanied the CBI team to
the house of B.M. Abdul Khader and at that time two folios of
documents were seized by the CBI team and the mahazar was
drawn in terms of Ex.P.70.
51. P.W.23 is an independent witness, who is an
employee of Syndicate Bank.. P.W.23 has not supported the
case of the prosecution and turned hostile.
52. P.W.24 is also an independent witness who is the
retired officer of Canara Bank. In his evidence he says that he
went along with CBI team to the resident of accused Abdul
Jabbar and CBI team seized six items of documents. It
consisted of passport, bunch of papers and other correspondence
letters, telephone index book. He signed the mahazar Ex.P.72.
In the cross-examination by learned counsel for accused No.7,
he says that he had not accompanied the CBI team and he was
taken by the CBI team from the Bank itself. It was about 6.30
hours in the morning. The working hours of the bank was from
10.00 a.m. to 5.00 p.m. He also admits that except Ex.P.54, no
other documents are seized.
53. P.W.25 is the retired Senior Section Supervisor,
BSNL, who is the seizure mahazar witness. In his evidence he
says that CBI Inspector called him to CBI office at RT Nagar and
obtained his signatures on the above mentioned documents and
he identifies signature at Ex.P.73. In the cross-examination, he
admits that he had signed at 90 places.
54. P.W.26 is the Sub-Divisional Engineer, BSNL. In his
evidence he says that he accompanied the CBI team to
Saraswathipuram of Mysore City and there they went to the
house of one Mr. Chaluvaraju and they conducted search in his
presence. The mahazar was drawn in terms of Ex.P.44. The
computer printout of telephone bills having page Nos.2 to 37
which was seized shown as item No.1 in Ex.P.44 is marked as
Ex.P.15 and it bears his signatures on the front page and the last
page. He admits that at the time of search, one Ramanni Kutti
was there in the house and he is accused No. 6 in this case. He
identifies him before the Court. One telephone instrument,
some wires, conference units were seized there. The detailed
telephone bill printouts were also seized there. Narayan Prasad
and Palakasha were also present at the time of the search.
55. In the cross-examination by learned counsel for
accused Nos.2, 3 and 6, it is elicited that M.O.1 and other
materials seized were produced by Smt.Vasantha. He does not
know whether any licence is required to keep M.O.1. M.O.1 like
instrument is available in the open market also. He cannot say
whether any call made through M.O.1 is recorded in it.
56. Having considered both oral and documentary
evidence placed on record, particularly in respect of accused
Nos.2 and 3, except the very contention of the learned counsel
for the CBI that there was a extra judicial confession, there is no
any material before the Court. The witness P.W.1 who is the
Vigilance officer of the department speaks only with regard to
accused No.1 was controlling the operations at RSU and speaks
with regard to that RSU inadvertently not transferred the four
telephones. The four telephones were given to the private public
call offices unauthorisedly. P.W.2 also categorically admits that
four numbers were removed from the records, but could be
used. Various documents of the exhibit does not reflect local
calls. He speaks that Ex.P.13 is the statement given by accused
No.3 and also identifies his signature. But the fact is that
accused Nos.2 and 3 gave the statement before them that
accused Nos.2 and 3 discharged their duties at the instance of
accused No.1. P.W.6 also says that an amount of Rs.10,000/-
was given to accused No.2 by accused No.1 once and again
given Rs.20,000/-. But there is no recovery in respect of
payment of the amount made to accused Nos.2 and 3. Except
the oral evidence of these witnesses against accused Nos.2 and
3 and the extra judicial confession made by accused Nos.2 and 3
before the official witness who belongs to the very same
department, no other materials are found.
57. The learned counsel for CBI also pointed out that in
the appeal memorandum the main contention urged is extra
judicial confession against accused Nos.2 and 3. The extra
judicial confession is a weak piece of evidence and based on the
weak piece of evidence of extra judicial confession, the accused
persons cannot be convicted. No doubt, it is the contention of
the learned counsel for the CBI that in a case of conspiracy, the
Court cannot expect direct evidence and the same has to be
proved by circumstantial evidence. In a case of proving the case
against the accused, relying upon the circumstantial evidence,
there must be a chain link to each circumstances and the same
is also not found in order to come to a conclusion that accused
No.2 and 3 have committed the offence. It is pertinent to note
that P.W.1 assessed the approximate loss to the tune of Rs.71
lakhs and the Accounts Officer categorically admitted in the
cross-examination that the same is based on guess work. It is
pertinent to note that P.W.1 admits that Technical Supervisor
and JTOs are technically trained in the area of
telecommunications. It is also important to note that P.W.1
categorically admits that he is not sure about the suggestion that
the working telephones and spare telephones i.e., non-working
telephones come under the control of main telephone exchange
in Gokulam. It is important to note that in the cross-
examination he admits that he has not made any enquires with
Mr.Sharma, A.E. External and Mr.Joshi, A.E. Internal.
58. It is important to note that P.W.2 Vigilance Officer in
the cross-examination though he claims that accused No.3
Ramesh has given the statement before him in terms of Ex.P.13,
his main evidence is that he did not take out the printout in
respect of disputed telephone number. P.W.3 speaks with
regard to accused No.3 that he was knowing operating of the
command and he intentionally did not take out the printout in
respect of those telephone numbers. But in the cross-
examination, P.W.3 categorically says that the job of accused
No.3 were those of the peon like cleaning the premises,
attending the phones, taking of detailed bill prints. He states
that he had given oral instructions to accused No.3 to take the
bill print outs as per the instructions of L.D.Joshi. He has not
given instructions to accused No.3 in writing. It is important to
note that he does not know the educational qualification of
accused No.3 and further admits that no training is given to
accused No.3 regarding operation of computers. P.W.3 admits
that he does not remember as to how many persons were
working in switch room during the period of offence. It was
suggested that L.D. Joshi and accused No.1 Mylaraiah were
involved in diversification of telephone lines in question and that
he know about the alleged conspiracy and the same was denied.
It is pertinent to note that in the cross-examination, he admits
that one cannot find out as to who actually operated the system
as appeared in Ex.P.17.
59. It is important to note that P.W.4 admits that she
know accused No.2 Padmanabha and he was working as casual
labourer in Nazarabad RSU. But she claims that he was carrying
out the work of jumpering for new telephone connections. But in
the cross-examination, she categorically admits that whenever
any subscriber wants STD and ISD facilities, he has to give
application to commercial officer and it will be routed and come
to them for execution. It is also important to note that she
admits that whenever any ISD facility is given to a subscriber,
the STD facility also follows it. So far as the telephone numbers
are concerned, they did not have ISD facility. They had only
STD facility. P.W.4 categorically admits that they have not given
any ISD facility to any of the above stated telephone numbers.
She further admits that she has to receive directions from the
higher officer and then only she can act upon in that regard.
She also admits that she has not gone to RSU Nazarabad at any
point of time. She claims that accused No.1 told her about the
jumpering work that was done by accused No.2. It is elicited
that she does not know as to how many members of staff were
working in Nazarabad RSU in those days and she cannot say
whether accused No.2 was not doing the jumpering works.
60. Having perused the evidence, particularly of P.W.1 to
P.W.5 and P.W.6, this Court does not find any incriminating
evidence against accused Nos.2 and 3 to bring the accused
within the ambit of committing the offence of conspiracy with
accused No.1 in causing loss to the department. It is important
to note that both of them are casual labourers and they were
appointed as peons and witnesses have categorically admitted
that they have not given any training and also no order was
given to entrust the work to accused No.3 to take out the
printouts and they are not having any technical knowledge.
Merely because the interested witnesses says that extra judicial
confession was given before them, they cannot be convicted. I
do not find any error committed by the Trial Court in acquitting
accused Nos.2 and 3 and there is no any recovery at the
instance of accused Nos.2 and 3 except extra judicial confession.
61. Insofar as accused Nos.5 to 8 are concerned, it has
to be noted that the witnesses, particularly P.W.11 who is the
owner of Raghu Nivas hotel, in his evidence he says that there
was no any telephone connection in the hotel. He says that
accused No.9 was present with the false name Manoj and claims
that accused No.8 was also present in the said room. He says
that none of accused No.2, 3, 5, 6 and 8 were staying in the
room in his lodge in that year. Later he came to know that real
name of Manoj was Mansoor Ahamad. When P.W.11 says that
when accused No.8 was not staying in the room, his evidence
cannot be relied upon in respect of accused No.8 though he
claims that accused No.8 was present in the said room.
62. P.W.14 identifies accused No.5 and Ex.P.33 is related
to accused No.5. In the chief evidence he identifies accused
Nos.2, 3, 5, 6, 7 and 8, but he claims that he can identify only
accused No.5. There is no any incriminating evidence against
accused No.5 except identifying accused No.5. P.W.16
Investigating Officer states that telephone bills are seized from
accused No.5 and accused No.6 has given voluntary statement in
terms of Ex.P.45 and says that M.Os.1 to 3 are recovered from
accused No.6. It is pertinent to note that P.W.26 in the cross-
examination categorically admits that M.O.1 and other materials
seized were produced by Smt.Vasantha and hence the evidence
of P.W.16 is contrary to P.W.26. It is pertinent to note that
P.W.26 who is an employee of BSNL i.e., Sub-Divisional
Engineer, BSNL, Mobile Services categorically admits that he
does not know whether any licence is required to keep M.O.1.
M.O.1 like instrument is available in the open market also. He
further admits that he cannot say whether any call made
through M.O.1 is recorded in it. First of all, the very recovery at
the instance of the accused has not been proved and P.W.26
who is an witness to the seizure mahazar admits that the same
was seized through Smt.Vasantha and throughout in the cross-
examination, it is suggested that the same was not seized from
the accused. Though prosecution relies upon M.Os.1 to 4, the
very seizuere itself is not proved. P.W.26 categorically says that
he cannot say whether any call made through M.O.1 is recorded
in it. Even though the prosecution relies upon Exs.P5 to 12
regarding calls made, none of the witnesses have spoken with
regard to that they have witnessed making of the phone calls by
the accused and it is only a hearsay evidence.
63. The prosecution also relied upon the evidence of
P.W.17 and P.W.18. P.W.17 original owner of the telephone
booth categorically says that no conference call facility was
provided in the said booth. He also says that he has entered
into an agreement with P.W.18 in terms of Ex.P.50. Having
perused the document Ex.P.50, it is an undisputed fact that it is
an agreement between P.W.17 and P.W.18. Though P.W.18
claims that accused No.5 approached and requested him to give
two telephones, he admits that there was an oral agreement
between accused No.5 and him and he paid Rs.30,000/- . In
order to prove the fact that accused No.5 has paid the advance
amount of Rs.30,000/- to P.W.18, no document is placed before
the Court. For having paid an amount of Rs.250/- per day by
accused No.5 also no documents is placed before the Court.
Merely identifying accused Nos.5 and 6 by P.W.18 is not enough
to prove the accused guilty. It is pertinent to note that P.W.18
categorically says that he used to see C.W.12 and accused No.6
in the telephone booth. In order to prove the fact that he
entrusted the two telephones to accused No.5, there is no any
material. P.W.18 admits that in terms of Ex.P.50 he has not
been permitted to entrust the same to anybody else and hence
his evidence is contrary to Ex.P.50.
64. The prosecution also examined P.W.19 hand writing
expert to prove the fact with regard to hand writing available at
Exs.P.53 and 57. In the cross-examination, P.W.19 categorically
admits that though he came to a conclusion that the same
belongs to a particular accused person, he categorically admits
that he has not produced the photographs of magnified writings
referring to the comparison. He further admits that normally
they magnify one and a half time or two times which is sufficient
for comparison through microscopic instrument. He categorically
admits that he has not produced the photographs of magnified
writing referring to the comparison and the same cannot be
believed and based on the handwriting expert's opinion, the
accused persons cannot be convicted. The mahazar witness
P.W.20 in respect of telephone STD booth, his evidence is not
particular about which of the documents are seized at the
instance of accused No.6 expect identifying the signature in
Ex.P.43. Though P.W.20 claims one witness H.S.Pujari was also
present, he has not been examined. It is also pertinent to note
that the other witnesses P.W.22 and P.W.23 are the witnesses to
the mahazar. The independent witness P.W.23 has completely
turned hostile and mere marking of documents is not enough
and the same has to be proved. P.W.24, the retired bank official
of Canara Bank is the mahazar witness to Exs.P.72 and 54. In
his cross-examination he categorically admits that he was taken
by the CBI team at about 6.30 hours in the morning. He
categorically admits that working hours of the bank was from
10.00 a.m. to 5.00 p.m. But his evidence is that they were
taken by the CBI team from the Bank itself in the early morning.
There is no explanation as to why they were in the Bank at 6.30
a.m. He also admits that except Ex.P.54, no other documents
are seized in his presence.
65. Having taken note of over all evidence available on
record, the prosecution failed to prove the fact with regard to the
involvement of accused Nos.5 and 6. No doubt, accused Nos.7
and 8 are beneficiaries of the said transaction. In order to bring
home all the accused persons also, there is no substantial
material before the Court. It is also important to note that
accused Nos.1 and 4 are no more and the specific case of CBI is
that accused Nos.1 and 4 conspired with other accused persons
in committing and causing loss to the department. The Trial
Judge while acquitting the accused has not discussed the
evidence on record in detail. Having perused the evidence on
record, this Court also does not find any substantial evidence
before the Court in order to connect the accused persons both in
respect of offence of conspiracy and also causing loss to the
department. No doubt, some of the documents i.e., Ex.P.2 to 12
are placed before the Court with regard to the use of the
telephone numbers which have not been installed to any other
person or any department and the same has been misused by
making telephone calls. But in the absence of any substantial
material before the Court, it is not appropriate to reverse the
findings of the Trial Court in coming to the other conclusion. On
re-appreciation of the evidence also, the benefit goes in favour
of the accused. In the case on hand, no such substantial
material is found to come to other conclusion and hence, I do
not find any merit in the appeal to reverse the findings of the
Trial Court.
66. It is important to note that in the appeal
memorandum mainly two grounds are urged with regard to
proving the conspiracy and the same is rest upon circumstantial
evidence and in order to connect the accused persons to prove
conspiracy also no chain link is placed before the Court. The
other contention is that extra judicial confession has not been
considered by the Trial Court. I have already pointed out that
extra judicial confession is a weak piece of evidence and based
on extra judicial confession, the accused cannot be convicted,
unless substantial material is placed on record. No doubt, the
learned counsel for the appellant though not urged other
grounds in the appeal memo, during the course of argument
brought to the notice of this Court several materials before the
Court and the same does not inspire the confidence of this Court
relying upon the evidence of P.Ws.6, 11 and 13. The evidence of
P.Ws.17 and 18 are not helpful to the prosecution in order to
prove the case against accused Nos.5 and 6. Apart from that,
there is no chain link between the circumstantial evidence in
favour of the prosecution. The conspiracy cannot be proved by
direct evidence but circumstances should be in favour of the
prosecution and the same is not found. Hence, there is no merit
in the appeal to reverse the findings of the Trial Court.
67. In view of the discussions made above, I pass the
following:
ORDER
(i) The appeal is dismissed.
(ii) The Registry is directed to pay the amount of
Rs.3,000/- in favour of amicus curiae.
Sd/-
JUDGE
PYR/MD
