IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THE NINETEENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT: THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO.1094 OF 2003 Between: Sundara Victor Gnandra Kumar, S/o. S. Chinnaiah, Telecom Technical Assistant, Remote Local Unit, Pandurangapuram Telephone Exchange, Visakhapatnam. - - - Accused/Appellant. AND The State of A.P. Rep. by Spl. P.P. for CBI, High Court of A.P., Hyderabad. - - - Complainant/Respondent. The Court made the following : THE HON'BLE SRI JUSTICE B. CHANDRA KUMAR CRIMINAL APPEAL NO.1094 OF 2003 JUDGMENT This Appeal is directed against the judgment dated 08-10-2003 passed in C.C. No. 22 of 2001, by the learned Special Judge for CBI Cases at Visakhapatnam (Hereinafter referred to as ‘learned Special Judge’), whereby and whereunder the appellant herein was found guilty for the offences punishable under Sections 409 IPC and Sections 13 (1) (c) read with 13 (2) and 13 (1) (d) (ii) read with 13 (2) of the Prevention of Corruption Act, 1988 (For brevity ‘the Act’) and was sentenced to undergo Rigorous Imprisonment for a period of three years and to pay a fine of Rs.1,000/- in default of payment of fine to undergo Simple Imprisonment for a period of three months, for the offence under Section 409 IPC, and he was further sentenced to undergo RI for two years and to pay a fine of Rs.500/- and in default of payment of fine to suffer SI for one month for each of the offences under Sections 13 (1) (c) read with 13 (2) and 13 (1) (d) (ii) read with 13 (2) of the Act. The substantive sentences of imprisonment were ordered to run concurrently. 2) The parties will be referred to as they are arrayed in the lower Court for the sake of convenience. 3) The brief facts of the case are as follows : The accused had been working as Telecom Technical Assistant, Remote Local Unit, Pandurangapuram Telephone Exchange, Visakhapatnam, during the relevant period. 4) PW.1 Mohan Agnihothri was working as Chief Accountant in Taj Residency Hotel, Visakhapatnam, (For brevity ‘the hotel’) and he was looking after all the financial transactions of the hotel. There were 26 telephone lines in the hotel and those lines were connected to the hotel through under ground cable and the lines terminate at their local BPL exchange in the hotel, which is a distribution point. There is STD and ISD facility from all extensions installed in the rooms of the hotel for the convenience of the guests and the other rooms are not having direct STD and ISD facility. Calls from the telephones, which are not having STD and ISD facility, must be rooted through the operator. Out of 26 lines, 6 telephones with numbers 567756, 564874, 564377, 564975, 564976 and 567141 are those lines for which STD and ISD facility is barred by programming at the BPL exchange. These lines are used only to receive incoming calls. He noticed that the telephone bills for the months of October and November, 1999 were in excess than the income generated from those telephone lines. Even, in December 1999 he noticed excess billing. Then he scrutinized telephone bills with reference to the junction wise numbers report from their BPL exchange and noticed that their junction wise numbers report did not tally with the numbers given in the telephone bills. He detected that in about 17 lines there was excess billing. He highlighted and marked the extra calls that were not originated from their hotel. The bunch of 17 bills for the months of October and November 1999 pertains to 17 lines of their hotel are marked as Ex.P1 and in those bunch of bills he highlighted the extra calls in red ink. Ex.P2 is the file containing junction wise report generated at their BPL exchange for the month of November, 1999. Ex.P3 to P.8 are the concerned bills and bunch of junction-wise reports. Then, he brought the same to the notice of their the then General Manager, and their General Manager lodged a complaint dated 28-01-2000 to the General Manager, Telecom District, Visakhapatnam. The office copy of their complaint is Ex.P9. Another complaint was lodged by the new General Manager of Taj Residency on 10-03-2000, which is Ex.P10. However, they had paid the excess bill amount which came to Rs.11,40,156/- for the period from October, 1999 to May, 2000. Then, the General Manager, Taj Residency had written a letter in Ex.P11 dated 07-07-2000 about the excess payment and requested to refund the full amount paid by them in excess. After due verification, the General Manager, Telecom District, Visakhaptnam ordered for refund of Rs.10,25,938/- to the Taj Residency Hotel towards excess payment as in Ex.P12 letter dated 19-10-2000. 5) PW.2 K. Rama Rao was working as Sub-Divisional Engineer in RLU-2, Telecom Department, Visakhapatnam. There were 5 telephone exchanges under his supervision. Pandurangapuram exchange is under his control along with four other exchanges. There were three Telephone Technical Assistants, one Telephone Supervisor (Operations), two Phone Mechanics and three regular Mazdoors working in Pandurangapuram exchange during October, 1999 to April, 2000. The duties of Telephone Technical Assistants include testing of telephone lines jumpering of new telephone connections, shifting of telephone connections. Ex.P13 is the copy of list of duties and responsibilities of the Telephone Technical Assistants. Ex.P14 is the letter of guidelines served on accused by PW.2 who signed along with all other staff members on such guidelines. In every telephone exchange there will be one Main Distribution Frame (MDF) Room. The MDF contains number of exchanges on one side and number of customers/subscribers on the other side. The number of subscribers will be connected to the lines of exchanges in the MDF room. MDF room shall be opened every day at 07-00 a.m. and it will be closed by 18-00 hours positively. The in- charge officer shall lock the room and seal it with a paper seal under his signature and date. No repairing job shall be undertaken after 18- 00 hours without specific instructions from the higher officials. By misusing MDF room any person can make any call to any person in the world and therefore the above procedure is being adopted to avoid malpractice. The MDF room key will be kept with the Mazdoor who will be on night duty. The Mazdoors are not empowered to open the MDF room after 18-00 hours. In every MDF room there will be a spare phone for taking dial tone. During the relevant time, three telephones belonging Nos. 568198, 544027 and 544028 were available in the Pandurangapuram exchange, which were supplied to the said exchange at the time of installation in 1994. Thus there was one dial tone testing phone and three other telephones for receiving complaints in Pandurangapuram exchange and there was no other phone at the said exchange. 6) PW.3 K.S. Bhaskara Rao, was working as Divisional Engineer, Vigilance in the office of the General Manager, Telecom District, Visakhapatnam, during the relevant period. His duty was to conduct surprise checks, inspections, vigilance checks etc. On receipt of the complaint from the General Manager of Taj Residency Hotel, Sri J. Ramachandra Rao, the then General Manager, Telecom District, Visakhapatnam, instructed PW.3 to go to Taj Residency and make an inspection. Accordingly, PW.3 and G. Subba Rao, the Sub Divisional Engineer, Vigilance, went to the hotel on 11- 01-2000 and examined the BPL exchange system in detail (observed with the hotel) having BPL exchange system installed in one room and the under ground cables of the Department coming from the pillar to the hotel distribution point in the BPL Exchange unit. Their examination revealed that the hotel at their BPL exchange system programmed the system to bar outgoing STD calls in 6 junction lines as referred above. The BPL exchange room was under the lock and key and the key was kept with the Manager of the hotel. The equipment was kept in a part of the room and that portion was partitioned with a glass separation. The equipment is visible through the glass outside the glass. An operator was sitting by the computer monitor observing the calls. Calls generated in the telephones through the hotel can be verified by taking computer generated reports at the junction box. They have verified their systems in the print outs taken at the junction box pertaining to the period in question. Each junction is identified with a number, whenever a call is made from the hotel it will seize a free junction and it will not always seize at the free junction in the same number. In that way calls made from the hotel room will be distributed among the vacant junctions. Their inspection further reveals that one particular telephone of the hotel was continuously seizing from one particular junction and this was not technically possible unless the particular junction was seized forcibly. They again visited the hotel second time on 24-03-2000, they also visited the Pandurangapuram exchange and found that the MDF room therein was not locked and sealed after the 19-00 hours contrary to departmental guidelines. He enquired with the watchman on duty and learnt that the accused was in the MDF room till then and went just before. He further noticed that while scrutinizing the questioned bills of Taj Residency hotel, he found most of the disputed calls were made between 05-00 p.m. to 08-30 p.m. made from the hotel. As a part of constant vigil on 04-04-2000, PW.3 and Sub-Divisional Engineer G. Subba Rao visited the hotel between 17-00 hours and 18-00 hours. Then, they informed PW.5 U. Mohan Das who was working as Telephone Technical Assistant, OCB Exchange, Visakhapatnam, to observe calls generating in 56 level at the threshold. All the numbers of Taj Residency hotel come under 56 level, Velampeta exchange. Velampeta (OCB) is the main exchange, Pandurangapuram exchange is the branch of the main exchange. All calls of Pandurangapuram exchange will be routed through Velampeta main exchange. PW.5 observed the threshold all calls emanating at OCB Exchange, which was for duration of more than 200 units, will be noted at threshold of the exchange at 56 level of the threshold. They had observed the threshold in telephone No.564377 at 18-35 hours. Then PW.5 intimated to PW.3 that he observed an ISD call and it had gone to Gulf country, as per the display on the threshold. PW.5 also observed 6 calls in telephone No.564377 during 17-00 hours to 21-00 hours. The calls were observed on the computer monitor installed at the OCB exchange. Ex.P7A is the telephone bill of phone No.564377 reflecting 6 calls on 04-04-2001 extended 200 units of calls. PW.3 who was at Taj Residency at the board of BPL Exchange in Taj Residency found that the said telephone No. 564377 was not under use from the side of the hotel. When they lifted the receiver of the said phone, they were getting dialed tone. Therefore, it was confirmed that no STD call was made from the hotel from that line. Then, they informed PW.5 to continuously watch and intimate the position. Again at 17-30 hours PW.5 informed PW.3 that continuously calls were going on from the same telephone number and the line was engaged. On verification at the hotel point they found that calls were not originating from the hotel. Their observation point was by the side of BPL Exchange and they saw the exchange through the glass portion but no person was found in that room. Thus, there was no malpractice on the part of the hotel and it was ruled out. Then, PW.3 and G. Subba Rao, Sub-Divisional Engineer went to the pillar No.25 from which the cables of the hotel were operating. They found nobody at the pillar and it was in locking condition. Then, they rushed to Pandurangapuram exchange, which was half kilometer away from the Taj Residency. When they reached Pandurangapuram exchange, they found all the doors of the exchange were closed from inside. Then PW.3 knocked the door from outside. After five minutes, the accused, who was in-charge of the exchange, opened the door from inside. He was alone available in the exchange premises. The Watchman, who was supposed to be present there, was not present. After the accused opened the door, PW.3 and G. Subba Rao, Sub-Divisional Engineer, went inside along with the accused officer. MDF room was opened and the light was seen in on condition in that room. PW.3 noticed the arrangement in MDF room with two telephones connecting with wires to the MDF room, when he checked one telephone it was in working condition. Immediately he came out of the said room, locked the room and waited at the main door. Then, PW.3 informed this fact to the Deputy General Manager and requested to arrange two departmental witnesses to verify the actual facts in the presence of witnesses. Then, Sri S. Venkateswara Rao, Sub-Divisional Engineer, MVP Telephone Exchange, Visakhapatnam and A.S.N. Murthy, Sub-Divisional Engineer, Velampeta, Exchange arrived at Pandurangapuram exchange by about 21-00 hours. After their arrival, the door of the MDF room was opened by that time, Chinna Rao watchman returned to the exchange. PW.4 A.S.N. Murthy as per the directions of the then General Manager, Telecom Department went to Pandurangapuram exchange and found PW.3,G. Subba Rao, accused and others present at the Pandurangapuram exchange. According to him, the lock of the MDF room was opened in his presence, they observed the arrangements, there were two telephones connected on the equipment side and disconnected on the line side by putting wedges. One telephone was connected to Taj Residency Hotel with telephone No.564377, after disconnecting the Taj Residency telephone on line side another telephone was connected to Grand Bay Hotel telephone No.567302 after disconnecting the said telephone on the line side. One more telephone of East India Petroleum Limited with No.567436 is also disconnected on the line side and exchange dial tone was given to the Taj Residency telephone No.564377. Due to this connection at the Pandurangapuram exchange the Taj Residency telephone was getting dial tone even though it was disconnected on the line at the exchange. The two telephones in the Pandurangapuram exchange were connected to each other with a wire to transfer one call from one telephone to the other. One telephone was kept in receiver off condition i.e. the receiver was kept by the side of the telephone. By the arrangement that was found any call could be made to anywhere in the world to any number of any subscriber. According to PW.4, this amounts to misuse of telephones equipment of the department. The arrangement as found was noted in the mediator’s report that was drafted at that time. PW.3 seized the telephones and other equipment in the presence of PW.4 and others. Ex.P21 is the mediators report. The other mediator was also present and signed on it. All the arrangements found by PWs. 3, 5 and other mediators were incorporated in Ex.P21 mediator’s report. Accused was also present through out the proceedings. Ex.P19 is the explanation given by the accused on the spot. The said statement reveals that the accused officer, as per the chart, had to do duty from 09-00 to 17-00 hours (9 a.m. to 5 p.m). However, he came to attend the duty from 12-00 noon to 20-00 hours. He did not inform his superior officers about the change of his duty, though he wanted to inform. This change was not made in the duty chart. On the date of surprise check i.e. on 04-04- 2000 at about 19-50 hours by the time of arrival of PW.3, the doors of the exchange were closed by him and he was alone present inside the exchange. K. Chinna Rao who was a mediator went outside for a tablet by the time of arrival of PW.3. The doors of MDF room were opened and the light was on. Two telephones were connected to MDF by 19-45 hours by attaching the wedge to one telephone 2.7.113 NE connected to telephone of exchange side. By attaching the wedge to another telephone 108.5.112 NE connected to exchange side. Another NE 108-5-97 connected to dial tone 108.5.112 line side through jumper. There is also parallel jumper to the phone which is on exchange side, 108.5.112. The above entire arrangement was made for the personal STD calls of the accused, though he made no calls. 7) PW.6 Abdul Rehman Kutty, was working as Financial Controller at Grand Bay Hotel, Visakhapatnam during the relevant period. The telephone No.567302 belongs to their hotel. Ex.P20 is the telephone bill for the months of April-May, 2000 pertaining to the said telephone number. According to PW.6, the calls, marked in Ex.B.20 bill, were not made from their hotel. Ex.P22 is the letter written by PW.6 to the investigating officer. Ex.P20 is the telephone bill issued for the telephone No.567302 of Grand Bay Hotel. Calls were made as follows : Date Time Call Tel No. DS CUC 04-04- 2000 1833 0404078172 593 170 04-04- 2000 1834 04045639831 5 2 04-04- 2000 1850 0404563983 781 224 04-04- 2000 19 8 0403391736 787 225 04-04- 2000 1933 0403510699 1363 195 04-04- 2000 1946 0755749904 681 98 K. Samba Siva Rao, PW.7 who was working as Junior Telecom Officer (Out door section) Visakhapatnam, was looking after the maintenance of the pillars, outdoor network etc. According to him, Pillar No.25, from which underground cables were laid to Taj Residency, was under his jurisdiction. According to him, the lock of the pillar will not be opened for any purpose after 17-00 hours. He further deposed that during the period from October, 1999 to April, 2000, there was no tampering of lock of the pillar. 8) According to PW.8 Mohammed Yaseen, he was working as Assistant Public Relations Officer, East India Petroleum Limited, Visakhapatnam during relevant period and that their company was having a telephone with No.567436 and it was installed to the chambers of the Director during 1999-2000 and the said telephone was under the jurisdiction of Pandurangapuram exchange. He says that their office opens at 09-30 a.m. and closes by 05-30 p.m. on all working days and that the telephone was having STD facility. 9) According to PW.9 U.V. Bhaskara Rao, who was working as Inspector of Police, CBI, Special Police Establishment, on 24-04-2001 at 17-30 hours, he registered a case in Crime No.11(A)/2001 on source information. The above case was registered against the accused for the offences punishable under Sections 120-B, 420 of IPC and Section 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act, 1988. Original FIR is Ex.P23. 10) PW.10 D. Mishra who was working as Sub-Inspector of police CBI, Special police establishment, Visakhapatnam, received orders from their superiors to investigate this case and he took up investigation, examined PW.s 1 to 8 and recorded their statements. He collected necessary documents from Telecom Department, which are marked as Ex.P24, and obtained sanction orders in Ex.P25 and after completing investigation laid charge sheet against the accused alleging that the accused caused wrongful gain to himself to a tune of Rs.10,25,928/- and corresponding loss to the Department. 11) PW.11 G.V. Rama Krishna, who was working as Deputy General Manager, (Operations) Telecommunications, Visakhapatnam, says that having perused the documents and having satisfied himself, he accorded sanction for prosecution of the accused. Ex.P25 is the sanction order issued by PW.11. 12) Thus, the prosecution when the accused denied the charges framed against him, in support of its case, examined PWs. 1 to 11 and got marked Exs.P.1 to P.26. None were examined on behalf of the accused, but Ex.D1 Photostat copy of vigilance guidelines was marked on his behalf. 13) On appreciation of evidence, the learned Special Judge found the accused guilty, convicted and sentenced him as stated supra. 14) Sri C. Praveen Kumar, learned counsel for the accused, submitted that initially the case was registered for the offence punishable under Section 120-B of the IPC alleging that the accused conspired with one Chinna Rao, regular Mazdoor and subsequently deleted Section 120-B of IPC. It is further argued that there is no legal evidence to say that the accused gained monetary benefit or that there was any monetary loss to the department. It is also submitted that PW.2 was having overall control over the equipment of the department and that he had supervisory powers over 5 telephone exchanges and that there were two Telephone Technical Assistants besides the accused in Pandurangapuram exchange and that there were three shifts of duties and that the accused had no exclusive domain over the MDF room. It is also submitted that PW.3 admitted that when the accused was not on duty as per the duty chart on 11 occasions, conference facility was arranged. It is also argued that as per the guideline No.18 of Ex.D1, the in-charge person of the exchange shall be held responsible for the fraud or irregularity in the exchange. It is also argued that there is absolutely no proof of entrustment of dominion over Pandurangupuram exchange where the MDF room is situated. It is also argued that there was no complaint by any person or from any official of Telecom Department and that the ACB officials have suo-motu registered the case. It is also argued that on mere suspicion the accused has been charge sheeted. It is further argued that there was no proper investigation in this case. When the Officials could verify the call numbers they could have as well ascertained the particulars of callers, and admittedly, there is no verification with regard to the particulars of the callers i.e. the persons to whom the calls were made. It is also argued that there was lot of delay in enquiring into the complaints made by the General Manager of Taj Residency Hotel. It is further submitted that Ex.P9 complaint was made by the General Manager of Taj Residency on 28-02-2000 and another complaint was made on 10-03-2000 but no effective measures were taken till 04-04-2000. It is further submitted that by misusing the MDF room any person can make any calls to any place in the world and hence it will not be said that the accused alone was responsible for making unauthorized calls. It is further argued that there was no direct evidence to say that the accused officer personally provided conference facility and collected amounts from the public for the same. It is also argued that admittedly, the total claim of Taj Residency is Rs.11,40,156/- from October, 1999 to May, 2000 but admittedly a refund of Rs.10,25,938/- was made and this shows that the claim of the Taj Residency with reference to the difference of amount was not accepted by Telecom Department and it shows that the calls pertaining to the difference amount were generated from their hotel and there was no investigation on this aspect. It is also argued that no reliance can be placed on Ex.P19, since it was obtained from the accused under threat. Moreover, the statement of the accused cannot be treated as his confessional statement, since the accused had given his explanation stating that the entire arrangement was made by him for his personal STD calls and that no STD calls were actually made by him. It is further argued that merely because the accused changed his duty from 09-00 to 17-00 hours to 12-00 to 20-00 hours that itself cannot be a circumstance to hold the accused responsible for the calls generated on that day at the time of watch. It is further argued that on that day, the accused was relieved by 19-00 to 20-00 hours, and therefore, he cannot be held responsible for the calls made at that time. It is also argued that there is a delay of more than a year in registering the case. It is also argued that though several persons seem to have been involved in the offence, but the petitioner alone is made scapegoat. It is also argued that even