Introduction

1. These appeals are directed against the judgment dated 30th January 2010 passed by the learned Special Judge in Corruption Case No. 78 of 1998, convicting the accused/Appellants for the offence under Sections 120B of the Indian Penal Code,1860 (‘IPCl’) read with Section 420 IPC and Section 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988 (‘PC Actl’) and Section 25/27 of the Indian Telegraph Act, 1955 (‘IT Actl’). Additionally, Fahim Ahmed Abbassi (A-1) [the Appellant in Criminal Appeal No. (‘Crl.Al’) 142 of 2010], Ashok Kumar (A-2) [the Appellant in Crl. A. No. 141 of 2010] and Mehmood Ahmed (A-3) [the Appellant in Crl.A. No. 140 of 2010] were convicted for substantive offence under Section 420 IPC and Jharkhandi Rai (A-5) [the Appellant in Crl.A.No. 139 of 2010]was convicted for substantive offence under Section 13(2) read with Section 13(1) (d) of the PC Act and Section 25/27 of the IT Act.

2. These appeals are also directed against the order on sentence dated 8th February 2010 whereby all the Appellants were awarded one yearl’s rigorous imprisonment (‘RIl’) along with a fine of Rs.10,000each and in default to undergo simple imprisonment (‘SIl’) for two months for the offence under Section 120 B IPC read with Section 420 IPC and 13(2) read with Section 13 (1) (d) of the PC Act and an identical sentence for the offence under Section 25/27 of the IT Act. Fahim Ahmed Abbassi, Ashok Kumar and Mehmood Ahmad were awarded two yearsl’ RI with a fine of Rs.40,000 each and in default to undergo SI for two months for the offence under Section 420 IPC. Jharkhandi Rai was awarded two yearsl’ RI along with a fine of Rs.20,000 and in default to undergo SI for two months for the offence under Section 13(2) r/w Section 13 (1) (d) of the PC Act. All the sentences were directed to run concurrently.

3. At the time of admission of these appeals, the sentences awarded to the Appellants were directed to remain suspended.

The case of the prosecution

4. The case of the prosecution was that a written complaint was filed by Mr. S.K. Peshin, Deputy Superintendent of Police (‘DSPl’), Central Bureau of Investigation (‘CBIl’), Anti Corruption Branch (‘ACBl’)(PW-21) on 10th January 1995 stating that a surprise check was conducted at F-18/8, Batla House, Jamia Nagar, New Delhi, in the presence of certain officials of the Mahanagar Telephone Nigam Limited (‘MTNLl’) and two independent witnesses to verify allegations regarding an ISD/STD racket being operated by some private persons in connivance with some officials of the MTNL, Okhla Telephone Exchange (‘OTEl’). During the course of the surprise check, two telephone numbers 6822682 and 6822683 were found installed in the said premises. The availability of ISD/STD facility on the said telephones was verified by the MTNL vigilance staff in the presence of the independent witnesses. It was revealed that two telephones were sanctioned in the name of Mr. Ayub Ali, resident of 337, B-1, Batla House and Mr. Mohd. Irfan, resident of D-40, Batla House respectively. Both the telephones were said to have been clandestinely shifted to18/8,Batla House in active connivance with Faheem Ahmed (A-1), Jharkhandi Rai (A-5)who was a regular mazdoor with MTNL, OTE and some other unknown employees of MTNL. At the time of checking, Ashok Kumar (A-2) Mehmood Ahmed (A-3) were found providing STD/ISD facility to various parties at cheap rates causing substantial loss to the MTNL. They were doing this on the directions of A-1.

5. According to the prosecution, on further investigations and on perusing the official records of the MTNL, it was revealed that aforementioned two telephone connections were sanctioned on the deposit of Rs.30,000 on each telephone in the ‘Tatkall’ category. A-1 and A-2 had got prepared on 9th September 1994 two bank drafts of Rs.30,000 from the Central Bank of India, Jamia Milia Branch in favour of MTNL. Two draft applications were submitted in the fictiti