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2017 Supreme(Mad) 2840
IN THE HIGH COURT OF JUDICATURE AT MADRAS
N. SATHISH KUMAR, J.
M/s. R.M.B. Software's Pvt. Ltd. – Petitioner
Versus
State Rep. by the Inspector of Police, SPE/CBI/ACB, Chennai – Respondent
Crl. R.C. No. 666 of 2016
Decided On : 10-07-2017
For the Petitioners: Mr. A. Ramesh for M/s. V. Krishnakumar.
For the Respondent: Mr. K. Srinivasan.
Headnote:
Indian Penal Code,1860 - 120 B read with 420 - Code of Criminal Procedure, 1898 - Indian Telegraph Act - Section 20 read with 4 - Indian Evidence Act - Section 65 (b) - Telegraph Regulatory Authority of India Act, 1997 - Section 3 – Offence of Criminal Conspiracy - Internet Service - server lines – Charged - Challenged - Joint surprise check was conducted by officer of CBI along with officials of Chennai Telephone at premise of M/s. Wipronet Ltd - PW-1 and PW-3 also participated in said surprise check and Ex.P1 was prepared and found out that illegal switching of international incoming calls were going on at Wipronet premises - Rough sketch about M/s. R.M.B Software Net work was identified and marked - According to PW-7, accused company sought co-location facility with Wipronet and they were provided with co-location services - It was informed that accused customers will look into -After connection, RMB Software was informed about activation - PW-8, Customer Relation Officer at Telephones, had passed orders granting connection to Wipronet – Held, entire oral and documentary evidence adduced by prosecution does not disclose factum of accused in establishing or maintaining or working telegraph - Except supply of M.O.1 server, accused has not played any role - Server in question was, in fact in custody of Wipronet all along and same was maintained only by employees of Wipronet - Therefore, Section 20 read with Section 4 of Indian Telegraph cannot be inferred merely because there is some violation in switching of international calls as local calls - More so, prosecution has also failed to establish that only accused herein have switched over incoming international calls as local calls - Both Courts below failed to appreciate that one of cardinal principles of our system of administration of justice in criminal cases is that a person arraigned as an accused in presumed to be innocent unless that presumption is rebutted by prosecution by production of evidence as may show him to be guilty of offence, with which he is charged - Therefore, no conviction can be based merely on assumption and presumptions - Courts below committed a glaring error in convicting revisionists/ accused - It is primarily duty of prosecution to bring home guilt of accused by leading cogent reliable and unimpeachable evidence - It is also duty of prosecution to establish these aspects beyond reasonable doubt and they must coexist. - Criminal Revision is allowed.
1. This Revision Petition has been filed by the petitioners challenging the judgment dated 13.4.2016 passed by the learned VII Additional Sessions Judge, Chennai confirming the judgment dated 22.09.2010 passed by the learned Additional Chief Metropolitan Magistrate, Egmore, Chennai for the offence punishable under Section 20 read with 4 of Indian Telegraph Act with Simple Imprisonment of six months and fine of Rs. 1,000/- each and in default of payment of fine, to undergo Simple Imprisonment for a period of two weeks. It has been further ordered that sentences awarded shall run concurrently.
2. The brief facts of the case of the prosecution is as follows:
(i) Joint surprise check was conducted by the officer of CBI along with the officials of Chennai Telephone on 02.8.2001, at the premise of M/s. Wipronet Ltd. Alwarpet. PW-1 and PW-3 also participated in the said surprise check and Ex.P1 was prepared and found out that illegal switching of international incoming calls were going on at Wipronet premises. Rough sketch about M/s. R.M.B. Software Net work was identified and marked as Ex.P3. The data print out taken were identified and marked as Ex.P4. PW-4, taken out print out of the telephone Nos., which is marked as Ex.P5. PW-5, Sub Divisional Engineer also spoken about the details of the print out. PW-7 was working as Technical Delivery Manager at Wipronet at the relevant time. According to PW-7, the accused company sought co-location facility with Wipronet and they were provided with co-location services. M/s. RMB Software sent the Server from Ahmedabad and the same was received on 19.1.2001 by him. The server was marked as M.O.1. The email print out, which was sent to Shafikhan, was marked as Ex.P7. PW-7 further stated that the server was connected to their network and Shafikhan informed them not to enter into the net access. It was informed that accused customers will look into. After the connection, RMB Software was informed about the activation. The Commission Report was marked as Ex.P8. 20 telephone connections were given under M.O.2. Thereafter, PW-7 was informed to disconnect the server. RMB Software also refused to part with password. At this juncture, the CBI authorities conducted surprise check and they were supplied with necessary details. The print out taken on the transaction was marked as Ex.P9.
(ii) PW-8, the Customer Relation Officer at Chennai Telephones, had passed orders granting connection to the Wipronet. The said documents are marked as Exs.P12 to P29. PW-9, carried out the orders by giving Telephone connections for Wipronet work. PW-10 to PW-21 were examined and in their evidence, they have stated that they never receive any foreign calls. PW-22, the Deputy Manager at Wipronet has given co-location service to Wipronet. The invoices in respect of the same is marked as Ex.P30. PW-24, Assistant Commissioner delivered the consignment and the said papers were marked as Exs.P.31 to P.40. PW-27 counter signed the records while passing imported items. PW-28, Manager of Lakshmi Vilas Bank stated that one Sanskrut Software opened an account with their bank and the opening form was marked as Ex.P43. The memorandum and Articles of Association were marked as Ex.P.44 and P.45.The statement of Current Account was identified and marked as Ex.P46. Similarly, A1 and A3 were also opened an account and the same is marked as Ex.47 and cheques issued were marked as Ex.48 series. Their statement of bank account is marked as Ex.49 series. The covering letter received from CBI was marked as Ex.P50.
(iii) PW-30 is the Finance Manager at Tata Communications Limited. According to her, they had an agreement between World Com American Company and VSNL on international incoming and outgoing calls and obtained licence, which is marked as Ex.P51. The income generated would be shared between the companies in the rate fixed in the agreement, which is marked as Ex.P52. The call duration calculation sheet for the month of January, Februa
