THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS. 398 AND 493 OF 2003. DATED: 25-11-2009. CRIMINAL APPEAL NO. 398 OF 2003. Between: B.Sai baba … Appellant/A3 and State rep. By C.B.I./SPE, Hyderabad … Respondent/Complainant. CRIMINAL APPEAL NO. 493 OF 2003. Between: Kodati Rajalingam … Appellant/A4 and State rep. By C.B.I./SPE, Hyderabad … Respondent/Complainant. THE HON’BLE SRI JUSTICE K.C.BHANU CRIMINAL APPEAL NOS. 398 AND 493 OF 2003. COMMON JUDGMENT: Since both the appeals arise out of same judgment, they are being taken up together and disposed of by way of this common judgment. 2. Criminal Appeal No.398 of 2003 by the appellant-A3 and Criminal Appeal No.498 of 2003 by the appellant-A4 under Section 374 (2) Cr.P.C., is directed against the judgment, dated 04-04- 2003, in C.C. No. 6 of 2000, on the file of the Special Judge for CBI Cases, Hyderabad, whereunder and whereby the appellants were convicted of the charge under Section 120-B r/w 420 IPC and sentenced to undergo Rigorous Imprisonment for a period of one year each and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for a period of three months each and further convicted of the charge under Section 13 (2) r/w 13 (1) (d) of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and sentenced to undergo Rigorous Imprisonment for a period of one year each and also to pay a fine of Rs.1,000/- each, in default to undergo Simple Imprisonment for a period of three months. 2. Brief facts, that are necessary for disposal of the present Criminal Appeals, may be stated as follows: A3 was working as Junior Telecom Officer at Saroornagar while A4 was working as Sub-Inspector (OPS) at Musheerabad exchange. A1 was the subscriber of Telephone No.7603062 and A2 was the subscriber of Telephone No.7602702 located at H.No.12-10-336/17 D, Seethaphalmandi, Secunderabad. On 08- 09-2007 information was received stating that huge calls were recorded against the above two telephones. P.W.1-Vigilance Officer collected Exs.P1 and P2, which reveal that A2 used to run STD PCO booth in Namalgundu, which was subsequently disconnected and the dues were not paid by the subscriber. The calls made on two telephones were above Rs.5,00,000/- in less than a month. On the basis of Ex.P5-report lodged by P.W.1, P.W.15 registered a case in R.C.No.22/S 1997 under Section 120- B and 420 IPC. P.Ws. 2,4,8 and 15 visited the premises where the telephones were installed. A4 who is the lineman has to climb the pole to find out the distribution point, but he stated that he is unable to climb the pole due to old age. Then they visited Pillor No.92 to verify the distribution point. A4 informed them that the telephones were from D.P.No.9105-A located in Sithaphalmandi area. As the two telephones were not working, P.W.2 and others went to subscriber premises and pulled out drop wires, which came out smoothly as they were not connected to any telephone. On checking, they heard dialing pulse, which indicates that the telephones attached to those two drop wires were connected to some other distribution point and in working condition. They found that drop wire was terminating at D.P.9125. It is further alleged that the telephones were supposed to work from D.P.9225-B, Tag Nos. 6 and 7. They found no parallel connection. Again P.W.2 and others approached Pillor No.92 and A4 informed that telephones are working from a cabinet. P.W.2 along with others did not find any jumper or parallel jumper. Therefore, all of them went to distribution frame and no irregularity was found there. A3 was present when the said inspection was conducted. These two telephones have no ISD facility, but telephone calls were made as if it is provided with ISD. From these two phones, to make international calls, the STD code of Rajampet, Jammalamadugu, Badwel Stations, which are connected to Kadapa and thereafter 004 was dialed to make ISD calls. This happens when there is a flaw in Kadapa Exchange. The billing will be for STD. A3 and A4 will know the line connection as they are in charge of the same and keys of the cabinet will be with A4. P.W.16 took up investigation from P.W.15, examined P.Ws. 1,2,4,7,8,11 and others and after obtaining sanction orders, filed the charge sheet. 3. The learned Special Judge framed the following charges against the accused: CHARGE NO.1: That A3 and A4 of you being public servants conspired with one A.Rajkumar and Ambati Srinivas and got two telephones bearing Nos. 7603062 and 7602702 at H.No.11-4- 698/1,Chilakalaguda, Secunderabad which is the residential address of Ambati Srinivas instead of at H.No.12-10-336/171, Sithaphalmandi, Secunderabad as mentioned in application and facilitated them to cheat Hyderabad Telephones by utilizing the said telephones as STD/ISD Public Telephones and thereby committed an offence punishable under Section 120-B r/w 420 IPC. CHARGE NO.2: That A3 and A4 of you being public servants facilitated one A.Raj Kumar and Ambati Srinivas to obtain pecuniary advantage by cheating DOT Hyderabad by resorting to commission of acts mentioned in charge No.1 and thereby committed an offence under Section 13 (2) r/w 13 (1)(d) P.C. Act, 1988. When the above charges were read over and explained to the accused in Telugu, they pleaded not guilty and claimed to be tried. 4. To substantiate the charges, the prosecution examined P.Ws. 1 to 16 and got marked Exs.P1 to P25. 5. After closure of the prosecution evidence, the accused were examined under Section 313 Cr.P.C. with reference to the incriminating material found against them in the evidence of prosecution witnesses. They denied the same. No evidence either oral or documentary was adduced on behalf of the accused. 6. The trial Court upon consideration of entire oral and documentary evidence available on record, convicted and sentenced the accused as above. Challenging the same, A3 and A4 preferred these two appeals. 7. Now the point that arises for consideration is whether the prosecution proved its case against the accused of the offences punishable under Sections 120-B r/w 420 IPC and 13 (2) r/w 13 (1) (d) of the Act beyond all reasonable doubt and whether the judgment of the trial Court is legal, correct and proper? 8. Learned counsel appearing for the appellants contended that absolutely, there is no evidence to show that the appellants facilitated A1 and A2 to use international subscriber trunk dialing, that there is no evidence to show that the appellants were responsible for shifting the telephone from the place of official sanction use to the place of unofficial sanction use, that the telephone connection with the same number cannot be used at two different places unless parallel jumper is provided, that the Divisional Engineer has to activate telephone connection for the use of ISD facility, that there is no evidence to show that the appellants with the assistance and help of A1 and A2 by utilizing STD and ISD calls, caused loss to the department to a tune of Rs.5,00,000/-, that as seen from the evidence, the calls were used with STD code number of Rajampet and Kadapa and therefore, they prays to set aside the convictions and sentences recorded against the appellants. 9. On the other hand Mr.T.Niranjan Reddy, learned standing counsel appearing for CBI cases contended that these two persons are in charge and responsible for telephone connections within the areas and they allowed two telephone connections to the unofficial residence where the illegalities have taken place and the two telephone connections given to A1 and A2 were supposed to work through one distribution point, but the two telephone connections contain another distribution point and that can be done only by the appellants, that after elaborate consideration of evidence on record, the trial Court rightly convicted and sentenced the appellants and absolutely, there are no grounds to interfere with the same. 10. Section 120-B IPC prescribes punishment for criminal conspiracy. Necessary ingredients to constitute the offence of Criminal Conspiracy are as follows: “(a) Two or more persons agree to do or cause to be done an act. (b) The act agreed must be- (i)an illegal act or, (ii)an act which is not illegal but is done by illegal means (c) If the agreement is not to commit an offence then some act besides the agreement is- (i) by one or more parties to such agreement (ii) in pursuance of the agreement” 11. Necessary ingredients to constitute the offence of cheating which is defined under Section 415 I.P.C. are: (1) There should be fraudulent or dishonest inducement of a person by deceiving him, (2) (a) the person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (3) in cases covered by (2)(b) the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property. 12. Insofar as Section 13 (1) (d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person. 13. It is not in dispute that two telephone connections bearing Nos.7602702 and 7603062 were allotted to A1 and A2. There was abnormal use of telephone in a particular month. Therefore, the department people visited the premises. It is not in dispute that both telephone connections were sanctioned for installation in the house bearing No.12-10-336/171, Seethaphalmandi, Secunderabad. On physical verification, the said two telephone connections were being used at the unofficial premises bearing No.11-4-698/1, Chilakalaguda. For shifting a telephone, there is a procedure prescribed. Admittedly, that procedure has not been followed. The evidence of P.W.2 would disclose that the wires which they pulled from the ventilator house, Seethaphalmandi were live wires and one can utilize those wires for telephonic communication by using instrument. The department people did not find the instruments in the said house. Similarly, they found self same connection in the premises bearing No. 11-4-698/1, Chilakalaguda, where the two telephones were actually in existence and working. The evidence of P.W.2 is very clear that for a single telephone to be used at two different places simultaneously, a parallel jumper has to be provided. The parallel jumper can be placed either at distribution point pillor or cabinet, main distribution point or even at subscriber’s premises also. Admittedly, the department people did not find any parallel jumper at any one of the points as mentioned above. Therefore, it is not known how both the telephones were found to be working at two different places without there being any parallel jumper. The prosecution has not able to show that the appellants made some illegalities or irregularities thereby making telephone connections at both the places working. If there is any evidence to show that the appellants were responsible for shifting of telephone connections un-authorisedly to the premises at Chilakalaguda, then it can be inferred that they have conspired with the subscribers so as to cause loss to the department. There is absolutely no evidence with regard to that aspect. The specific case of the prosecution is that the appellants were responsible for mis-utilizing telephone number for making STD and ISD calls to a tune of Rs.5,00,000/- 14. P.W.1 categorically admitted that no ISD call was provided to the above two connections. STD codes of Kadapa and Rajampet were used for making ISD calls and those calls were routed from Kadapa and Rajampet. For providing ISD facility, the password has to be activated in the exchange. Admittedly, the route password has to be activated by the Divisional Engineer of the Exchange. Therefore, there is no evidence to show that appellants activated the password to enable the subscribers to use ISD and STD calls through Rajampet and Kadapa STD codes. The entire case rests upon surmises and conjectures. It is well- established principle of law that surmises and conjectures have no role to play in a criminal prosecution. Except the fact that the appellants were in charge and responsible of Seethaphalmandi and Chilakalaguda, nothing has been brought in the evidence to show that they were conspired with A1 and A2 and caused loss to a tune of Rs.5,00,000/- to the department or they facilitated A1 and A2 to make use of ISD and STD calls. It is not known how two parallel connections are to be under working condition at two different places. That evidence is lacking in this case. If there is any evidence that with the connivance and knowledge of the appellants, the telephone connections were used for making ISD and STD calls in the unauthorized premises, then certainly one can accept it. But there is no such evidence. These aspects have not been taken into consideration by the trial Court. Therefore, the appellants-A3 and A4 are liable to be acquitted. 15. Accordingly, both the Criminal Appeals are allowed setting aside the judgment, dated 04-04-2003, in C.C. No. 6 of 2000, on the file of the Special Judge for CBI Cases, Hyderabad. The appellants-A3 and A4 are found not guilty of the charges under Sections 120-B r/w 420 IPC and 13 (2) r/w 13 (1) (d) of the Act and accordingly, they are acquitted of the said charges. Bail bonds of the appellants-A3 and A4 shall stand cancelled. Fine amount, if any, paid by the appellants-A3 and A4 shall be returned to them. --------------------- K.C.BHANU, J DATED:25-11-2009 Hsd