JUDGMENT (Prayer: Criminal Appeal has been filed under Section 378 of Cr.P.C., pleasedto set aside the judgment dated 05.12.2012 in Criminal Appeal No.240 of 2010in C.C.No.15491 of 2008 passed by the Learned III Additional Sessions Judge,Chennai, acquitting the respondent/accused (A2 and A3) for the chargeslevelled against them and convict them for the offences charged in the interestof justice.) 1. This Criminal Appeal is preferred by the State being aggrieved bythe order of the Lower Appellate Court acquitting the accused by reversing thejudgment of the trial Court convicting the respondent for the offences underSection 20 r/w 4 of Indian Telegraph Act and Section 21 of Indian TelegraphAct, 1885. 2. The case of the prosecution is that, between June 2004 andMarch 2005, A1 Abdul Hakeem established illegal telecom hub in the name ofM/s.Casino Courier Service, at Door No.75, II Floor Triplicane High Road,Triplicane, Chennai. He was a running parallel Telecom Exchange withoutobtaining valid license. In pursuant to the criminal conspiracy,Mr.T.S.Saravanan, Proprietor of M/s.Vaibhav Enterprises and one Malliga,Manager, misused GSM connection of M/s.Airtel; were illegally used forreceiving international calls through ADSL link of M/s.BSNL. All the threeaccused in pursuant to the said conspiracy, by using the illegal telecomconnection, transmitted the international calls as local calls and was connectedto various domestic phone connections. By this, they caused loss to the tune ofRs.57,54,375/- to the Government of India, Department of Telecommunication. 3. The trial Court framed charges against A1 to A3 for the offencesunder Section 120-B r/w 419, 420, 468 and 471 I.P.C and under Sections 20, 21and 25(c) of Indian Telegraph Act, 1885. Section 6 r/w 3 of Indian WirelessTelegraph Act and Section 66(2) of Information and Technology Act, 2000. 4. To prove the charges, the prosecution examined 16 witnesses(P.W.1 to P.W.16), marked 50 Exhibits (Ex.P.1 to Ex.P.50) and 49 materialobjects (M.O.1 to M.O.49), (mostly cellphones and SIM Cards used for thealleged crime) 5. The trial Court found all the three accused guilty of offencesunder Sections 20 & 21 of Indian Telegraph Act sentenced them to undergo thefollowing punishment:- Accused Offences Conviction and Sentence passed by the trial Court A1 to A3 u/s.20 r/w 4 of Indian Telegraph Act To undergo 6 months S.I and to pay fine of Rs.1000/- each in default 2 weeks S.I. u/s.21 of Indian Telegraph Act Sentenced to pay a fine of Rs.50/- each in default 1 week S.I. 6. The trial Court, however held that the prosecution failed toprove the offences under Section 66 (2) of Information and Technology Act2000, Section 6 r/w 3 of Indian Wireless Telegraph Act and Section 25(c) ofIndian Telegraph Act and also concluded that, the prosecution failed to provethe charges against all the three accused under section 120-B r/w 419, 420, 468,471, 468 r/w 471 and 419 of I.P.C 7. Aggrieved by the order of Trial Court in C.C.No.15491 of 2008,A1/Abdul Hakeem has preferred C.A.No.240 of 2010 and A2 has preferredC.A.No.239 of 2010 before the III Additional Sessions Court, Chennai. 8. The Sessions Court allowed both the appeals holding that, theallegations of illegal use of Telegraph or establishing unauthorised telegraphpunishable under the Indian Telegraph Act is unfound. The charges andmaterial evidence indicates violation of Telecom Regulatory Authority of IndiaAct 1997 but the trial Court has misconstrued that the appellants have violatedthe Indian Telegraph Act. Since the appellants/accused were not charged undercorrect provision/Act, they are entitle for acquittal. 9. Being aggrieved by that, the State/Appellant has preferredappeal Crl.A.No.783 of 2013 against the order of acquittal of Abdul Hakeem(A1) on the ground that the Learned Trial Court Judge failed to consider thefacts and law properly. The definition of ''Telegraph'' under the Indian TelegraphAct includes Telephone also but the trial Court misconstrued the law and hadwrongly observed that the violation attracts only provision of TRAI, 1987. 10. Though notice was sent to the 1st respondent/accused, there isno representation for the respondent/accused. Hence, Mr.Naveen Kumar Murthiwas appointed by Legal Services Authority to represent therespondent/accused. 11. The Learned Counsel appointed by this Court, after dueresearch on this point submitted that the prosecution launched under IndianTelegraph Act 1885 for running an illegal Telephone Exchange may not applyif strict interpretation of the charging provision is made. Being a Penalprovision, the Court cannot apply liberal or harmonious interpretation. Theexpression Telegraph as found in Section 4 or 20 or 21 of Indian Telegraph Actdoes not mean and include Telephone in the strict sense. Therefore, thedecision of the Learned Session Judge cannot be found fault. Unless, theexpression ''Sound'', found in the definition of Telegraph under Section 3(1-AA)is given a liberal interpretation to include telephone, otherwise the reason forthe order of acquittal appears to be correct. Therefore, thedecision of the Learned Session Judge cannot be found fault. Unless, theexpression ''Sound'', found in the definition of Telegraph under Section 3(1-AA)is given a liberal interpretation to include telephone, otherwise the reason forthe order of acquittal appears to be correct. The Learned Counsel fairlyclarifying the legal position, also submitted that, even if that reason is held notbased on correct interpretation, also on facts, the order of acquittal need not bedisturbed. Since the other grounds raised by the accused in his appeal still holdsgood. The Lower Appellate Court having been convinced on the nonapplicationof the Indian Telegraph Act, allowed the appeal without advertingto the other grounds. 12. In support of the said submission, the Learned Counsel for therespondent relied upon these two judgments:- (i). Union of India -vs- Subodh Kumar reported in 1984 Cri LJ367. (ii). Deny Bora -vs- State of Assam reported in (2014) 14 SCC 22. Section 3 (1-AA) of Indian Telegraph Act, 1885 defines Telegraphas below:- “3. Definitions.—In this Act, unless there issomething repugnant in the subject or context,— ..... ..... [(1AA)] “telegraph” means any appliance,instrument, material or apparatus used or capable of usefor transmission or reception of signs, signals, writing,images and sounds or intelligence of any nature by wire,visual or other electro-magnetic emissions, Radio wavesor Hertzian waves, galvanic, electric or magnetic means.” 13. The Learned Counsel submitted that, the charges against therespondent/Abdul Hakeem are under Section 20 r/w 4 of Indian Telegraph Actand Section 21 of Indian Telegraph Act, 1885. Section 20 of Indian TelegraphAct, 1885 in Part -IV PENALTIES deals with offence “For establishing,Maintaining or working unauthorised Telegraph”, and Section 21 deals with“Using unauthorised Telegraphs”. If Telephone does not fall within thedefinition of Telegraph, naturally Section 20 and Section 21 of IndianTelegraph Act, 1885 will not attract and therefore, the order of acquittal by theLower Appellate Court is justifiable. 14. Per contra, the Learned Special Public Prosecutor forCBI/Appellant submitted that, the 1st respondent died on 24.10.2019 andtherefore, the appeal is abated. However, the error in the judgment of theAppellate Court has to be indicated so that, there is no miscarriage of justice infuture. 15. 14. Per contra, the Learned Special Public Prosecutor forCBI/Appellant submitted that, the 1st respondent died on 24.10.2019 andtherefore, the appeal is abated. However, the error in the judgment of theAppellate Court has to be indicated so that, there is no miscarriage of justice infuture. 15. The case of the prosecution as spoken by their witnesses andevidence, is that, A1 conspired with other two persons and had establishedillegal Telephone hub in the Office premises at Door No.75, II Floor, TriplicaneHigh Road, Triplicane, Chennai and by using Technology, MS Dishnet wasconnected to DSL router by by-passing the BSNL Gateway and by VOIPattached GSM and FTC connections through public switch telephone networkillegally transmitted international calls as local calls, by connecting to variousdomestic phone connections. The illegal diversion of international calls as localcalls has caused loss of Rs.57,54,375/- to the Government of India. Though,the other charges were not proved, the trial Court has convicted the accused forthe offences under Section 20 r/w 4 and Section 21 of Indian Telegraph Act,1885. The said Penal Sections are extracted below for each reference:- Section 20 of Indian Telegraph Act, 1885 as below:- “20. Establishing, maintaining or workingunauthorised telegraph.— (1) If any person establishes,maintains or works a telegraph within [India] incontravention of the provisions of section 4 or otherwisethan as permitted by rules made under that section, heshall be punished, if the telegraph is a wireless telegraph,with imprisonment which may extend to three years, orwith fine, or with both, and, in any other case, with a finewhich may extend to one thousand rupees. (2) Notwithstanding anything contained in the Codeof Criminal Procedure, 1898 (5 of 1898), offences underthis section in respect of a wireless telegraph shall, for thepurposes of the said Code, be bailable and noncognizable. (3) When any person is convicted of an offencepunishable under this section, the Court before which heis convicted may direct that the telegraph in respect ofwhich the offence has been committed, or any part of suchtelegraph, be forfeited to Government.”Section 21 of Indian Telegraph Act, 1885 as below:- “21. (3) When any person is convicted of an offencepunishable under this section, the Court before which heis convicted may direct that the telegraph in respect ofwhich the offence has been committed, or any part of suchtelegraph, be forfeited to Government.”Section 21 of Indian Telegraph Act, 1885 as below:- “21. Using unauthorised telegraphs.— If anyperson, knowing or having, reason to believe that atelegraph has been established or is maintained orworked, in contravention of this Act, transmits or receivesany message by such telegraph, or performs any serviceincidental thereto, or delivers any message fortransmission by such telegraph or accepts delivery of anymessage sent thereby, he shall be punished with fine whichmay extend to fifty rupees.” 16. While Section 3 [(1-AA)] of Indian Telegraph Act, 1885defines Telegraph means instrument used for transmitting sound etc., and theIndian Telegraphs Rules, 1951 framed under Section 2 (rr) of Indian TelegraphAct, defines “Telecommunication” means any transmission, emission orreception signs, signals, writing, images, sounds of intelligences of any nature,by wire, radio, visual or other electromagnetic system and also defines PublicTelephone, Local Public Telephone, Interpolated Public Telephone, LongDistance Public Telephone. It is incorrect to say Indian Telegraph Act, 1885cannot be invoked against the person running illegal Telephone Exchange.TRAI (Telecom Regulatory Authority of India), established under the Act ofParliament to regulate Telecom Services including fixation, revision of Tarifffor Telecom service. The dictionary meaning of word ''Telephone'' is anapparatus, system, or process for transmission of sound or speech to a distantpoint, especially by an electric device. 17. While defining the Telegraph, the act includes any appliance orinstrument used of transmitting sound. Therefore even the strict interpretationof the law does not exclude Telephone from the preview of Indian TelegraphAct. Certainly, the establishment of exchange using telephone and cellphone totransmit sound/voice will fall within the definition of Indian Telegraph Act. Sowithout license, whoever establishes or maintain unauthorised telephoneExchange or whoever use the telephone exchange established unauthorisedlycan be prosecuted under Section 20 and Section 21 of the Indian Telegraph Act,1885. 18. The Learned Lower Appellate Court Judge has misconstruedthat, Telephone and Telephone Exchange are out of purview of IndianTelegraph Act, 1885 ignoring the definition of Telegraph found in Section 3(1-AA). The Lower Appellate Court Judge, though had extracted Section 20, 21and 4 of the Indian Telegraph Act had miserably failed to look at the definitionSections both in the Act and as well as in the Rules framed thereunder. 19. The Lower Appellate Court Judge, though had extracted Section 20, 21and 4 of the Indian Telegraph Act had miserably failed to look at the definitionSections both in the Act and as well as in the Rules framed thereunder. 19. The apparent error in the Lower Appellate Court orderingacquittal is due to the failure of not considering the definition of IndianTelegraph Act as found in Section 3 [(1-AA)]. 20. Before parting, this Court records its appreciation to theLearned Counsel for the appellant as well as the respondent for their assistanceto the Court to arrive at the above conclusion. 21. This Court, pointing out the error apparent in the judgment ofthe Appellate Court regarding application of law, the Criminal Appeal No.783of 2013 is disposed of as abated, recording the death of the 1strespondent/accused.