KENDER SINGH Vs. CBI

JUDGEMENT

(1.) Whether reporters of local papers may be allowed to see the judgment? Yes. 2. To be referred to the reporter or not? Yes. 3. Whether judgment should be reported in Digest? Yes. JUDGMENT 1. By this common order, I shall dispose of these four appeals against a common judgment. Criminal Appeal No.44 of 2004 has been preferred by the State assailing order on sentence passed by Special Judge whereas the other three appeals have been filed by the accused persons assailing the conviction.

(2.) Brief facts relevant for purpose of deciding these appeals are that telephone number 3018899, a service telephone working in Parliament House having ISD/STD was lying in disuse since 1988 as the minister to whom it was allotted had ceased to be the minister. It was detected that this telephone number was illegally functioning at 11/48, Commercial Centre, Malcha Marg, Chanakyapuri, New Delhi. On knowing that this telephone line was illegally functioning at some commercial centre, the conversation between the persons using the telephone line was taped. The said telephone was having ISD and STD facilities and it was found that the telephone was being used for making STD calls. The investigation team of MTNL then traced out as to where this line was functioning and tracing of the telephone line led them to 11/48, Commercial Centre, Malcha Marg, Chanakyapuri, New Delhi to the premises of a private company namely 'Magnum International Trading Company '. Rajiv Chaudhary and Sudhir Chaudhary(accused no.4 and 5) were its directors. The taped telephonic conversation had revealed that the phone was being used by one B.K. Kapur (accused no.6). Further investigation revealed that it was accused no.1,2 and 3 who were responsible for illegally diverting the Parliament House telephone line to the business place of accused no.4 and 5. This telephone was found illegally operative from 23rd March, 1993, but could be detected on 23rd August 1993. In order to investigate as to where this telephone was functioning and who was using it, the telephone was allowed to remain operative till 26th August 1993. Thus, the period for which this telephone line remained illegally functioning at the premises of accused no.4 and 5 was from 23rd March, 1993 to 26th August 1993. (Accused numbers given herein are as per chargesheet).

(3.) Accused no.3 and 4 died during the trial. Accused no.5 was acquitted by the learned trial court. The trial court convicted accused no.1,2 and 6 i.e. three appellants under Sections 120B IPC read with section 13(1)(d) of Prevention of Corruption Act and the trial court convicted accused no.1 and 2 i.e. T.R. Sharma and Kender Singh additionally under Section 13(1)(d) read with section 13(2) of Prevention & Corruption Act. The trial court after convicting them, instead of sentencing them under Section 13(2) of Prevention of Corruption Act, gave benefit of probation to all the three accused persons. The State has filed appeal in view of provisions of Section 13(2) providing minimum sentence and in view of Section 18 of Probation of Offenders Act, submitting that benefit of probation could not be given. The appellant B.K. Kapur has appealed on the ground that the only evidence against him was that he had used the said telephone, and misuse of the said telephone would not make him liable for conspiracy. T.R. Sharma and Kender Singh have appealed on the ground that there was no evidence to convict them for either of the offences.