Delhi District Court
Ca No.241/2017 Freeman Anosike Aluma vs . Cbi on 16 October, 2018
CA No.241/2017 Freeman Anosike Aluma Vs. CBI
IN THE COURT OF MS. KIRAN BANSAL, SPECIAL JUDGE07 (CENTRAL),
(PC ACT CASES OF ACB, GNCTD), DELHI
Criminal Appeal No.241/2017
CNR No. DLCT010174162017
Freeman Anosike Aluma
S/o Mr. Aluma
R/o 514II Floor,
Chirag Delhi,
New Delhi - 110017. ......Appellant
VERSUS
CBI, SPEEOUIX,
CGO Complex, New Delhi. .....Respondent
Date of Institution on : 22.11.2017
Order reserved on : 06.10.2018
Order delivered on : 16.10.2018
JUDGEMENT
1. By way of present appeal under Section 374(3) of Cr.P.C., 1973, the appellant has assailed the order/judgment passed by the Ld. Trial Court dated 26.07.2017 whereby the Ld. Trial Court has convicted the appellant under Section 379 r/w Section 120B IPC and vide order dated 21.08.2017 sentenced the convict for the period he had already undergone imprisonment i.e. two years eight months and also directed him to pay a fine of Rs.50,000/ (Rupees Fifty Thousand only) as compensation to the complainant and in default of payment of compensation/fine, it was directed that convict shall undergo further simple imprisonment of six months.
2. Brief facts of the case are that the complainant Sh. Tarun Pandotra had received an Email message dated 23.08.2008 on his email ID:
[email protected] purportedly sent from email of HDFC Bank NET Banking [email protected] wherein it was mentioned that the Pages: 1 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI HDFC bank was carrying out a software upgrade and the accountholder should visit the indicated link. The complainant considered the same to be approved email and visited the link and on the link disclosed his customer ID and IPin password. Thereafter, on 25.08.2008, an unauthorised addition was made as account beneficiary by the name Mr. Subburaj and on 26.08.2008 two more beneficiaries i.e. Mr. Manish and Mr. Mohammad were added to the account of complainant by hacking his HDFC account. On 27.08.2008, complainant was informed by the bank that a sum of Rs.2,23,960/ has been debited from his account through internet fund transfer banking facility. Thereafter, complainant made a complaint to stop transactions, he was informed that the amount has already been transfeered to the HDFC bank account of Mohd. Yusuf Gurkhoo on 26.08.2008. The complainant realized that this was a fraud and lodged a police complaint/FIR. On 27.08.2008, Mohd. Yusuf Gurkhoo revelaed that his friend Mohd. Nafees had asked him for his HDFC Bank account. Mohd. Nafees is known to Mohd. Ishtiyak and Mohd. Ishtiyak was aked by one of his friend Guddu to arrange an HDFC Bank account for accused on pretext that some payment was to be received from Delhi. Thereafter, Mohd. Ishtiyak had requested Mohd. Nafees to arrange for an HDFC bank account. Mohd. Nafees asked his friend Mohd. Yusuf Gurkhoo to provide his HDFC Bank account and Mohd. Yusuf Gurkhoo has provided his bank account alongwith ATM card, PIN number to Mohd. Nafees. Mohd. Nafees provided the bank details to Mohd. Ishtiyak and Mohd. Ishtiyak sent the details to the mobile phone of the accused from his mobile number 9911339632. Mohd. Ishtiyak was thereafter informed by the accused that an amount of Rs.2,23,000/ or Rs.2,24,000/ has been transferred in the account of Mohd. Yusuf Gurkhoo and thereafter Mohd. Ishtiyak alongwith Mohd. Nafees withdrew Rs.15,000/ through ATM card from the said account and Rs.2,00,000/ was withdrawn by Mohd. Yusuf Gurkhoo thorugh self cheque Pages: 2 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI from the HDFC Bank, Saket Branch. This money was given by Mohd. Yusuf Gurkhoo to Mohd. Ishtiyak. Mohd. Ishtiyak had handed over the total sum of Rs.2,15,000/ to Mohd. Yusuf Gurkhoo on 27.08.2008. With the above submissions, prosecution has filed the chargesheet against the accused stating that the accused had conspired with the unknown persons to hack the account of the complainant and had stolen Rs.2,23,960/ from the account of complainant through phising attack and had, thus, committed the offence under Section 120B IPC r/w Section 66 IT Act & 379 IPC.
3. On 15.10.2013, charge was framed by the Ld. Trial Court to which the accused pleaded not guilty and claimed trial.
4. PW1 is a formal witness.
5. PW2 Smt. Anju Sud, Vice President with HDFC Bank Ltd., Maharani Bagh, New Delhi has deposed that on 27.08.2008, she had received a call from the Koramangla Branch of HDFC Bank and was told that a telephonic complaint was received from Sh. Taurn Pandotra regarding the phising transaction of Rs.2,23,960/ from his account. The NET banking team of the HDFC Bank Ltd. had immediately locked the Net banking of the account of Sh. Tarun Pandotra. She has further deposed that she observed that the funds have been transferred from his account to Mohd. Yusuf Gurkhoo who was holding an account with HDFC Bank Ltd., Saket Branch. She was shown the email dated 23.08.2008 received by the complainant Sh. Tarun Pandotra and she told that the said email was fraudulent and a fake email. PW2 confirmed that a letter D 4 dated 03.09.2008 was received from the CBI regarding production of the original Account Opening Form and specimen signature card pertaining to the account of Mohd. Yusuf Gurkhoo. In response to the letter of CBI, PW2 had Pages: 3 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI sent a letter dated 20.11.2008 to the IO alongwith the Account Opening Form and specimen signature of Mohd. Yusuf Gurkhoo, the documents were exhibited as Ex.PW2/A. She has also identified her signature on letter dated 24.11.2008 sent to the IO to which she had sent account opening form alongwith specimen signature of the complainant Sh. Tarun Pandotra. The said documents were exhibited as Ex.PW2/B. She further deposed that Net banking facility was also given to the customer Sh. Tarun Pandotra. She also identified her signature on the letter dated 20.11.2008 sent to the IO and deposed that she has sent account opening form alongwith specimen signature of Mohd. Yusuf Gurkhoo to the IO alongwith Form 60, original electricity bill of landlord Shri Irshad Ahmed, copy of rent agreement executed between Irshad Ahmed and Mohd. Yusuf Gurkhoo, copy of initial payment of cash amount Rs.5,500/ given for account opening, nomination form and original cheque to which an amount of Rs.2,00,000/ was withdrawn. All the said documents were collectively exhibited as Ex.PW2/C. PW2 also deposed that credit card facility was given to Mohd. Yusuf Gurkhoo and the cheque book bearing No. 239126 to 239150 was issued to the accountholder. The cheque bearing No. 239132 is Ex.PW2/D. Testimony of this witness has remained unrebutted and PW2 was not cross examined by the defence counsel. Thereafter, she was recalled on the application under Section 311 Cr.P.C. and was further examined in chief on 25.11.2016 wherein she deposed that on 18.12.2008, she had handed over login details of Sh. Tarun Pandotra alongwith certificate under Section 65B of Indian Evidence Act to the IO vide seizure memo Ex.PW2/X, certificate under Section 65B of Indian Evidence Act is Ex.PW2/Y and login details are Ex.PW2/Z.
6. PW3 Sh. Ram Dev Pandit is a witness to the search of residence of Mohd.
Yusuf Gurkhoo at Malviya Nagar. He has stated that during the search, one Pages: 4 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI cheque book containing cheque leaf numbers 239131 to 239150, one ATM cumDebit Card of HDFC Bank and photocopy of election identity card in the name of Mohd. Yusuf Gurkhoo were seized. The cheque book is Ex.PW3/2, the ATMcumDebit Card of HDFC Bank of Mohd. Yusuf Gurkhoo was exhibited as Ex.PW3/3. This witness has also not been cross examined on behalf of the defence.
7. PW4 Sh. Anil Kumar Sharma deposed that the ground floor of the house bearing No.C254, Swarn Nagari, Greater Noida, U.P. is in the name of his wife and was rented out to the accused. The rent agreement with the accused was exhibited as Ex.PW4/A. This witness is also not been cross examined on behalf of the defence and his testimony has remained unrebutted.
8. PW5 HC Jai Beer Singh deposed that he had gone to serve notice under Section 160 Cr.P.C. in the name of Mrs. Shanti Devi/Mr. Devi at Noida on 09.12.2008 but despite search, he could not succeed to locate the said address. He also made inquiry from Gram Pradhan and other people about Mrs. Shanti Devi/Mr. Devi and it was revealed that no person with the name Mrs. Shanti Devi/Mr. Devi is residing at VPO Kassna, Greater Noida, Gautam Budh Nagar, Noida, U.P. The said notice under Section 160 Cr.P.C. was Ex.PW5/A and the report on the said notice is Ex.PW5/B. This witness has also not been cross examined by the defence counsel and his testimony has also remained unrebutted.
9. PW6 Sh. Jugal Kishore is also a team member of the Search Team who conducted the search on 03.09.2008 at the residence of Mohd. Yusuf Gurkhoo. He has also deposed on similar lines as that of PW3. He is also a witness to the search conducted at the rented accommodation of the accused on Pages: 5 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI 24.11.2008 and he has deposed that during the search, some documents and passport were seized there. The said search list in the handwriting of PW6 is Ex.PW6/1. During cross examination, he has deposed that when he reached at the residence of the accused alongwith team member, the accused was also present in the house and two passports were recovered from the house of the accused. He has deposed that they remained at the house of the accused for about two hours and the accused was also taken to their office. He has denied the suggestion that he was not a member of the search team.
10. PW7 Sh. Kulbhushan Singhal has deposed that on 03.09.2008, on the direction of the Controlling Officer, he was asked to become part of confidential investigation team. Thereafter, he alongwith team members had reached at the residence of Mohd. Yusuf Gurkhoo and has deposed that the article searched during the said search of the house of Mohd. Yusuf Gurkhoo were seized vide search memo. Remaining testimony of the PW7 is on the similar lines as PW3 and PW6.
11. PW8 Sh. S. Balasubramony has deposed that he had issued notice under Section 91 Cr.P.C. in November, 2008 to the Branch Manager of HDFC Bank, Koramangalam, Bangalore to produce the original account opening form, statement of account and details of the ATM card of the account of Sh. Tarun Pandotra, said notice is Ex.PW8/1. He further deposed that in response to notice Ex.PW8/1, Ms. Anju Sood, Branch Manager, HDFC Bank Ltd. had supplied original account opening form and specimen signature card of Sh. Tarun Pandotra to IO of the present case through letter Ex.PW2/B. The account opening form alongwith specimen signature of Sh. Tarun Pandotra are Ex.PW8/2. He further deposed that he had also issued a notice under Section 91 Cr.P.C. to Branch Manager, HDFC Bank, E143, Saket, New Delhi to Pages: 6 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI produce the original account opening form, specimen signature card, statement of account of Mohd. Yusuf Gurkhoo, self withdrawal cheque No.239132 amounting Rs.2.0 lakhs signed by Mohd. Yusuf Gurkhoo and details of ATM card, the said notice is Ex.PW8/3. He further deposed that he had also issued notice under Section 91 Cr.P.C. to Branch Manager, HDFC Bank Ltd., Kamla Mills Compound, Senpati Bhagat Marg, Mumbai for getting the complete login details of Sh. Tarun Pandotra from 23.08.2008 to 30.08.2008 and list of beneficiaries linked to the said account, said notice is Ex.PW8/4. He further deposed that during investigation, vide productioncumreceipt memo dated 29.04.2011, the original application form of mobile no. 9911314257 in the name of Pabitra Kumar Bala and mobile no.9911339632 in the name of Haider Raja were taken over from Shri Pawan Kumar, Nodal Officer of Idea Cellular, said productioncumreceipt memo is Ex.PW8/5. Customer application form of mobile no.9911314257 and 9911339632 alongwith ID proof are Ex.PW8/6. This witness is also not been cross examined by the defence counsel and his testimony has also remained unrebutted.
12. PW9 Sh. R.K. Singh deposed that in pursuance to the email written by IO to Capt. Rakesh Bakshi, the then Sr. Manager, Bharti Airtel to provide call details with ownership of mobile no. 9717525452, he had provided the original customer application form vide letter dated 11.12.2008 and the said letter is Ex.PW9/1, customer application form issued in the name of Shanti Devi is Ex.PW9/2, call detail records (CDRs) of the above said mobile number for a period from 15.08.2008 to 15.09.2008 is Ex.PW9/3 and certificate under Section 65B of Indian Evidence Act is Ex.PW9/4. This witness is also not been cross examined by the defence counsel and his testimony has also remained unrebutted.
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13. PW10 Sh. Rajesh C. Karnatak deposed that he was posted as Inspector CBI, and on 03.09.2008 he conducted a search alongwith other team members of the residence of Mohd. Yusuf Gurkhoo at E12/66, Second Floor, Hauz Rani, Near Malviya Nagar, Delhi. During crossexamination, he deposed that he alongwith Anuj Arya, Jugal Kishore, one witness from bank and Vijay had reached the house of accused at about 5:006:00 PM. He did not know whether team incharge had informed the landlord. He deposed that one public witness was stated himself to be the care taker of the house where accused was living was present there. He further deposed that they reached at spot at about 03:00 PM by their official car and distance between the house of accused and CBI office is about 1520 Km. He further deposed that they remained in the house of accused for about 23 hours. Thereafter, they left the spot. He further deposed that he does not know whether the Team Incharge informed any relative/friend of accused and do not remember the number of passports recovered. He further deposed that all the facts were mentioned in seizure memo, however, he did not remembered the name of passport holder. PW10 further deposed that they reached back the CBI office at about 09:00 - 10:00 PM. He has denied the suggestion that he was not a member of the search team and accused has been falsely implicated in the present case.
14. PW11 Sh. Prem Singh deposed that he knew Sh. Anil Sharma whose wife owned a house No.C354, Swaran Nagri, Greater Noida. He stated that he is the care taker of the said house since 2005. He deposed that he also look after the maintenance of the said house. He further deposed that on 24.11.2008, CBI team visited the said house and inquired about the Nigerian person who was residing on the ground floor of the above said house. He further deposed that a search was conducted in his presence vide search memo already Ex.PW6/A and articles/documents marked as MarkX to MarkX1 were recovered from Pages: 8 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI the rented house. During crossexamination, he deposed that CBI officials reached at around 02:0002:30 PM and stayed for about 04:00 hours and recovered some papers, bags etc. from the accused as per the search list. PW11, however, did not know about the details of the articles/documents.
15. PW12 Sh. Sanjeev Kumar deposed that on 24.11.2008 on the directions of Chief Manager, he was associated with the CBI team as a witness. He was informed about the secret information that one Nigerian person was suspected to have hacked one HDFC Bank account and had withdrawn the amount of Rs.2,23,960/. He further deposed that at about 05:30 PM, he alongwith CBI team members reached at the house of accused at C254, Swarn Nagri, Greater Noida, U.P. and some documents alongwith sim card number 89860072190713584295 were recovered from the house of accused. He also deposed that a search list Ex.PW6/1 was prepared in his presence at the spot during search of the house of accused and articles/documents recovered at the time of search were mentioned at point X to X1. During crossexamination, he deposed that he had not received any written instructions to join any raiding team. He did not remember how many CBI officials had joined the search, however, they came in two vehicles. He further deposed that they reached at spot at about 06:00 PM. The distance between the office of CBI and spot is about 2530 Kms. He further deposed that he did not know the landlord of the accused as he was not present there. He further deposed that they had left the spot at about 07:45 - 08:15 PM alongwith the accused who was in other vehicle of raiding team. He denied the suggestion that he was not a member of the raiding team on 24.11.2008 and had signed the documents without going through the same or was deposing falsely.
16. PW13 Sh. Omveer Singh has deposed that on 24.11.2018, he had received a Pages: 9 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI letter and telephonic call from CBI to reach the office of CBI, CGO Complex, Lodhi Road, New Delhi. He further deposed that he had reached in the office of CBI at about 08:40 PM and found that accused was being interrogated by the IO. He further deposed that he is a witness to the arrest of accused and the accused was arrested in his presence on 25.11.2008 at 12:10 AM. He further deposed that arrestcumpersonal search memo was prepared in his presence. He again deposed that he had also signed on the mobile sets which were seized vide Ex.PW13/1. During crossexamination, he deposed that he had approached to CBI on the written directions of Director General, CERTIN and when he reached in the office of CBI, accused was already present there. He again deposed that he remained at CBI office till 12:30 AM on 25.11.2008 and did not go to any other place. He again deposed that accused was interrogated by Sh. Anuj Arya, however, he do not remember now how many CBI officers were present at that time. He further deposed that accused was physically searched in his presence. He stated that he was a witness of arrest and personal search of the accused. He denied the suggestion that he was not present at the time of arrest of the accused and no personal search was conducted in his presence. He denied the suggestion that he had not joined the arrest proceedings of the accused.
17. PW14 Sh. Pawan Singh, Nodal Officer, Idea Cellular Limited deposed that vide productioncumreceipt memo dated 29.04.2011 already Ex.PW8/5, he had handed over Original Application Form of mobile No.9911314257 in the name of Pabitra Kumar Bala alongwith photocopy of driving license as ID proof and Original Application Form of mobile No.9911339632 in the name of Haidar Raja already Ex.PW8/6 alongwith photocopy of driving license as ID proof to IO S. Balasubramony. This witness is also not been cross examined by the defence counsel and his testimony has also remained unrebutted.
Pages: 10 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi. CA No.241/2017 Freeman Anosike Aluma Vs. CBI
18. Complainant Sh. Tarun Pandotra, PW15 has deposed that on 23.08.2008, he had received an Email on his personal Email ID i.e. [email protected] from HDFC Bank with a link stating that they were doing some upgradation of software and requested him to furnish his user ID and password in respect of Internet Banking. He again received the said emails on 24.08.2008 and 25.08.2008 also. He deposed that on 25.08.2008, on clicking the said link and web page he had submitted the details regarding his User ID and password on the same and on 27.08.2008, after checking his mail at 11:30 AM, he received an email from HDFC Bank stating that Rs.2,23,960/ have been debited from his account. He had immediately contacted the Customer Care Executive of HDFC Bank, Delhi and informed them regarding the said transaction who immediately stopped his Internet Banking transactions and asked him to contact after about half an hour. He again deposed that he thereafter contacted the Customer Care Executive, HDFC Bank, Bangalore who informed him that the transaction had already been effected and the amount had already been transferred to the account of one Mr. Mohd. Gurkhoo through Internet Banking. After that, he had received a call from HDFC Bank, Koramangla Branch who informed him that Rs.15,000/ had been taken out from ATM, Shalimar Garden on 26.08.2008 and Rs.2.0 lakhs have been withdrawn through cheque from HDFC Bank, Saket, Delhi on 27.08.2008 both from the account of Mr. Mohd. Gurkhoo in whose account the amount of Rs.2,23,960/ was transferred through Internet Banking. He again deposed that on 27.08.2008, he had received three emails from HDFC Bank that three beneficiaries names were added in his account out of which one is Mr. Manish but he did not recollect the name of other two beneficiaries at that time. He again deposed that on 29.08.2008, he had approached CBI, Delhi and lodged a written complaint Ex.PW15/A about Pages: 11 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI hacking of his account and unauthorised withdrawals of amount. He had also furnished the details of emails received from HDFC Bank Ex.PW15/B, the same were the print outs of computer generated emails. He admitted Ex.PW8/2, the Account Opening Form of his HDFC Bank Account. During crossexamination, he has relied upon the facts mentioned in his chief examination however he did not state whether the name of one of the beneficiaries Mr. Mohammed is Mohd. Yusuf Gurkhoo only. He further stated that HDFC Bank never compensated him and he did not remember the date of closing his account.
19. PW16 Sh. Haider Raza deposed that he was engaged in the business of hand embroidery. He again deposed that Mohd. Ishtiyak is known to him since year 2000 as he used to work under him as carrier boy and he was residing in front of the house of his sister. He again deposed that Mohd. Ishtiyak was also using his bike and in the year 20062007, Mohd. Ishtiyak had requested him to give his ID for issuance of a mobile SIM card for personal use. Thereafter, PW16 had given a photocopy of his driving license and two photographs to Mohd. Ishtiyak to get an IDEA SIM card issued in the name of PW16 for his personal use. He further deposed that he had not seen the Customer Application Form bearing No.0662334 already Ex.PW8/6, however, the same is in his name, however, the photograph at point A was the same which was handed over to Mohd. Ishtiyak alongwith photocopy of his driving license for issuance of mobile SIM card only. During crossexamination, he deposed that Mohd. Ishtiyak was illiterate, who knows Hindi language only and had left working under him at that time.
20. PW17 Mohd. Nafees did not supported the case of the prosecution and deposed that he was engaged in the work of hand embroidery since 1997 at Pages: 12 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI Maharani Bagh, Delhi. He deposed that Mohd. Ishtiyak is known to him since the year 2004 and he also knew Mohd. Yusuf Gurkhoo. He again deposed that he was called by Mohd. Yusuf Gurkhoo to CBI office and when he reached there, he met DSP Anuj Arya. He again deposed that he was informed that some Nigerian was involved in some fraud, however, he stated that either Mohd. Ishtiyak or Mohd. Yusuf Gurkhoo had sent some text message from his mobile phone no.9911314257. He again deposed that he had not sent any message as he does not know how to send SMSs. He again deposed that the SMS was sent by Mohd. Ishtiyak from his mobile phone. He further deposed that Mohd. Yusuf Gurkhoo and Mohd. Ishtiyak visit him at his place of work at Maharani Bagh and they used to use his mobile number. He stated that he had never visited the house of either of Mohd. Yusuf Gurkhoo or Mohd. Ishtiyak. He denied the suggestion that Mohd. Ishtiyak had asked him about his HDFC Bank account or of any of his relatives on 21/22.08.2008. He further deposed that Mohd. Yusuf Gurkhoo has his bank account in HDFC Bank, Saket Branch, Delhi. He stated that he did not take the account number of Mohd. Yusuf Gurkhoo to transfer amount as required by the accused and had never sent any message/SMS from his mobile number to any person as he does not know how to send SMS. He deposed that he came to know about the fact of transfer of Rs.2,23,960/ in the HDFC Bank account of Mohd. Yusuf Gurkhoo in the office of CBI itself, however, the said amount was taken by Mohd. Ishtiyak from Mohd. Yusuf Gurkhoo. He further deposed that the fact of withdrawal of Rs.2.0 lakhs by way of cheque was disclosed to him through Mohd. Yusuf Gurkhoo, who thereafter told that he had handed over the same to Mohd. Ishtiyak, however, he did not ask Mohd. Yusuf Gurkhoo about his ATM Pin and ATM Card at any point of time. He further deposed that Mohd. Gurkhoo in the office of CBI had told that he had handed over his account number to Mohd. Ishtiyak to transfer money and handed over the amount to Pages: 13 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI Mohd. Ishtiyak. He further deposed that Mohd. Gurkhoo handed over his account number to Mohd. Ishtiyak to receive the said transfer money, however, he has no knowledge that from where the said money was transferred. He again deposed that he does not know at which place Mohd. Yusuf Gurkhoo handed over his ATM Card alongwith PIN to Mohd. Ishtiyak. During his crossexamination by Ld. APP for CBI, he denied the suggestions that he was deposing falsely to save the accused or concealing the true facts.
21. PW18 ASP Sh. Anuj Arya has deposed that on a complaint Ex.PW15/A regarding unauthorised withdrawal/transfer from the HDFC Bank account of Sh. Tarun Pandotra for an amount of Rs.2,23,960/ through Internet Banking by way of hacking, RC No.3/08, EOUIX, CBI was registered by Sh. Ajay Kumar Yadav, the then SP, EOUIX, CBI, same is Ex.PW18/1 and the said investigation was entrusted to him by Sh. Ajay Kumar Yadav only. He further deposed that during investigation, he had taken the original account opening form and specimen signature card of Sh. Tarun Pandotra having A/c No.00531050257910 of HDFC Bank already Ex.PW8/2 alongwith check list Mark8/A and photocopy of driving license of Sh. Tarun Pandotra Mark8/B from Ms. Anju Sood, Branch Manager, HDFC Bank. PW18, IO also collected the documents i.e. statement of account No.00431000184243 for the period 26.07.2008 to 19.11.2008, original account opening form and specimen signature card of account No.00431000184243 in HDFC Bank in the name of Mohd. Yusuf Gurkhoo and original self withdrawal cheque No.239132 dt. 27.08.2008 for Rs.2.0 lakhs already Ex.PW2/D from Ms. Anju Sood, Branch Manager, HDFC Bank. Original account opening form and specimen signature card of account No.00431000184243 in HDFC Bank in the name of Mohd. Yusuf Gurkhoo is Ex.PW18/2. He again deposed that a search was conducted on 03.09.2008 by another IO S. Balasubramony at the house of Pages: 14 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI Mohd. Yusuf Gurkhoo under Section 165 Cr.P.C. in his presence and thereafter, a search list was prepared regarding the documents recovered from the house of Mohd. Yusuf Gurkhoo with signatures of himself, Sh. S. Balasubramony, Sh. J.K. Joshi, Sh. R.C. Karnataka, Insp. Naresh Sharma as they were working with him in same branch. He further deposed that he had also conducted a search of the residence of Mr. Aluma F. Anosike @ Moon situated at C254, Swaran Nagri, Greater Noida, UP on 24.11.2008 and during search they recovered documents/articles MarkX to X1 from that house. He against deposed that arrestcumpersonal search memo already Ex.PW13/1 was got prepared during the personal search of the articles mentioned at column no.12. During investigation, he had received a letter with statement of account w.e.f. 01.07.2008 to 17.12.2008 of Sh. Tarun Pandotra from Ms. Anju Sood, Branch Manager, HDFC Bank, Saket Branch, New Delhi, the same is Ex.PW18/3 (D15 & D16). He again deposed that he had sent a letter dated 05.12.2008 alongwith three mobile phones and two sim cards to Director, GEQD, Hyderabad for examination duly signed by the then S.P. Ajay Kumar Yadav, same is Ex.PW18/4 (D23). He had also sent a letter dated 04.09.2008 (D24) to Sh. Anil Sagar, Addl. Director, CERTIN, Ministry of Communication and Information Technology, New Delhi duly signed by the then S.P. Ajay Kumar Yadav asking him if any investigation was carried out on the IP address used to access the net banking page of the complainant, same is Ex.PW18/5. He again deposed that on his request letter dated 04.09.2008, he received a reply/letter dated 17.12.2008 from Sh. Anil Sagar that fishing mail which originated from email ID [email protected] was received by the complainant originated from USA, fishing website of HDFC Bank posted on domain hdfcnetbasedataup.agilityhoster.com located at Germany and three beneficiaries were added to Sh. Tarun Pandotra's net banking account on 25/26.08.2008 and amount of Rs.2,23,960/ was transferred to the account of Pages: 15 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI Mohd. Yusuf Gurkhoo through third party fund transfer. He again deposed that during further investigation he tookover login certificate details EX.PW2/Z in respect of bank account of Sh. Tarun Pandotra with certificate under Section 65B of Indian Evidence Act Ex.PW2/Y from Ms. Anju Sood, Branch Manager through productioncumseizure memo dated 18.12.2008 already Ex.PW2/X. He further deposed that during further investigation he had issued notice U/s 160 Cr.P.C. Ex.PW5/A to Mrs. Shanti Devi/Mr. Devi duly received back with report Ex.PW5/B that the above named person is not residing at the address mentioned on notice. He stated that Ms. Anju Sood, Branch Manager had produced documents mentioned in notice U/s 91 Cr.P.C. issued by Part IO S. Subramaniyam vide letter dated 04.09.2008 Ex.PW18/6 (D21 & D22). He further deposed that vide productioncumseizure memo dated 20.11.2008, he tookover the print out of email dated 23.08.2008 alongwith header details from Sh. Tarun Pandotra already Ex.PW15/A. He further deposed that he had also obtained the rent agreement Ex.PW4/1 executed between accused and Ms. Poonam Sharma w/o Sh. Anil Sharma and had recorded the statements of relevant witnesses under Section 161 Cr.P.C. He further deposed that he had also recorded statement of Mohd. Nafees under Section 161 Cr.P.C., same is Ex.PW18/7. After concluding the investigation, he had filed the chargesheet.
22. PW19 Mohd. Yusuf Gurkhoo has deposed that he was running an Embroidery Workshop at Hauzrani, Malviya Nagar, New Delhi since year 2000. He further deposed that he knew Mohd. Nafees since year 2001 and Mohd. Ishtiyak through Mohd. Nafees since June 2008. He again deposed that he was having a bank account No.00431000184243 with HDFC Bank, Saket Branch, New Delhi. He further deposed that in August 2008, he had sent his above said account number to Mohd. Nafees through SMS for the purpose of transfer of some amount for him for one of his known person. He again deposed that Pages: 16 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI Mohd. Nafees had asked him about his ATM card and Pin number to verify as to whether the amount has been transferred in his account or not. He further deposed that on the next day Mohd. Nafees informed him that amount has been transferred in his account and he had withdrawn Rs.15,000/ through his ATM card. He again deposed that on the same day, Mohd. Nafees and Mohd. Ishtiyak had visited his house and stayed there till morning and in morning, three of them had visited the HDFC Bank, Saket Branch, New Delhi and on the request of Mohd. Nafees and Mohd. Ishtiyak, Mohd. Yusuf Gurkhoo had withdrawn Rs.2.0 lakhs through self cheque (Ex.PW2/D) which was in denomination of 1000 currency notes. He, thereafter, handed over the said amount to Mohd. Ishtiyak. This witness has also not been crossexamined by the defence counsel and his testimony has also remained unrebutted.
23. PW20 Sh. Ramesh G. Kotian has deposed that he had joined HDFC Bank in October, 2006 as Assistant Vice President, Information Security Group. He further deposed that the duties assigned to him were managing information security risk in online banking and investigation of any customer complaints related to unauthorised transactions using net banking. After going through the statement of account of Sh. Tarun Pandotra and login details, he deposed that on 25.08.2008, third party beneficiary was added at 10:41 hrs, thereafter, he made inquiries at about 10:42 hrs for ensuring that addition has been correctly made. He again deposed that on 25.08.2008 at about 23:19 hours, another beneficiary was added by the user, thereafter, user made inquiries at 23:20 hours for ensuring that addition has been correctly made and user deleted the beneficiary at 23:22 hours finding possibility that wrong beneficiary account had been added. He again deposed that on 25.08.2008 at about 23:23 hours user inquired if the deletion has been correctly made or not. Another beneficiary was added by the user at 23:28 hours and thereafter, user made Pages: 17 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI inquiries at 23:29 hours for ensuring that addition. Further, on 26.08.2008 at 23:25 hours an amount of Rs.2,23,960/ was transferred by the user through net banking, however, these beneficiary additions and funds transfer were carried out from Canada through IP address 208.78.58.98. After seeing the email Ex.PW15/1 received by Sh. Tarun Pandotra on 23.08.2008 at 21:11:49 IST, he deposed that the email was not genuine and was not sent by the bank, however, the same was sent from France through IP address 80.12.242.26. He further deposed that remaining four emails (Ex.15/1 colly) dated 25.08.2008 and 26.08.2008 were regarding the addition of beneficiary were sent by the bank and the same were genuine, however, email dated 27.08.2008 regarding transfer of amount of Rs.2,23,960/ from the account of complainant was also sent by the bank and genuine.
24. PW21 Mohd. Ishtiyak has deposed that he knew Mohd. Nafees being a friend for last about 15 years and he knew Mohd. Yusuf Gurkhoo through his friend Mohd. Nafees. He again deposed that he knew accused Freeman Anosike Aluma @ Moon through one of his friend Guddu since May/June 2008. He again deposed that Guddu had asked him to arrange one HDFC Bank account for accused on the pretext that some payment has to be received at Delhi and he has no account in HDFC Bank. Thereafter, he requested Mohd. Nafees to arrange one HDFC Bank account and on asking of Mohd. Nafees, Mohd. Gurkhoo provided his HDFC Bank account for the said transfer of money from Nigeria and provided details of his bank account, ATM card and its PIN number to Mohd. Nafees. He thereafter sent said details of bank account, ATM Card and PIN to the mobile phone of the accused from his mobile No.9911339632 and the same were sent in the month of August, 2008 only. He further deposed that Mohd. Yusuf Gurkhoo had handed over his debit card of HDFC Bank Ex.PW3/3 to Mohd. Nafees. He again deposed that in the month Pages: 18 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI of August 2008, accused himself informed on his mobile phone that an amount of Rs.2,23,000/ or Rs.2,24,000/ has been transferred in the account of Mohd. Yusuf Gurkhoo and thereafter on the asking of accused, he alongwith Mohd. Nafees visited the ATM at Shalimar Garden and had withdrawn an amount of Rs.15,000/ by using the said ATM card and informed Mohd. Yusuf Gurkhoo that transferred amount had already been credited in his account. He further deposed that on the asking of accused, he alongwith Mohd. Nafees and Mohd. Yusuf Gurkhoo went to HDFC Bank, Saket Branch, New Delhi where Mohd. Yusuf Gurkhoo had withdrawn Rs.2.0 lakhs through cheque. He further deposed that on the same day in the evening, he had handed over an amount of Rs.2,15,000/ to the accused at his residence situated at Greater Noida, U.P. and Mohd. Yusuf Gurkhoo assured them that he will handover the remaining amount after deduction of bank charges of transfer of money and for the same accused paid him an amount of Rs.500/ in respect of expenses incurred on fuel/taxi fare. He further deposed that thereafter he came to know that accused was arrested in a case of fraud. During crossexamination, he denied all the suggestions put to him.
25. PW22 Sh. Anil Sagar deposed that he was posted as Addl. Director (Scientist 'E') at Indian Computer Emergency Response Team (CERTIN), Ministry of Electronics and Information Technology, Electronics Niketan, 6, CGO Complex, New Delhi at that point of time and has analysed and given opinion in more than 7000 cases related to phishing and cyber fraud cases. He further deposed that on the letter Ex.PW18/5 of CBI, he had given report on phishing website of HDFC Bank alongwith letters dated 17.12.2008 and 16.12.2008 to Sh. Ajay Kumar Yadav, the then S.P., CBI, same are Ex.PW22/A and Ex.PW22/B respectively. He again deposed that phishing email Ex.PW15/1 was sent through IP address 99.141.87.236 routed through "orange.fr" belongs Pages: 19 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI to US and France IP 80.12.242.46 available on internet for sending spoofed mails after registering on the website "id.orange.fr". He again deposed that during analysis he found that the alleged amount of Rs.2,23,960/ was transferred through third party transfer on 26.08.2008 at 23:35 hours from HDFC A/c No.00531050257910 of Sh. Tarun Pandotra to HDFC A/c No.431000184243 of Mohd. Yusuf Gurkhoo. He again deposed that at the time of transfer of money IP address 208.78.58.98 belonging to Canada was used to add beneficiaries. He again deposed that the said IP address was used on 25.08.2008 to transfer the alleged amount and after that he deleted the added beneficiary on 27.08.2008 from the said IP address. He again deposed that the person who had transferred the alleged money used different IP addresses of different countries to hide his identity. During crossexamination, he deposed that the email which was received by the complainant was purportedly sent from USA which was routed through France. He further deposed that three beneficiaries were added in the account of complainant on 25.08.2008, however, the additional beneficiaries added in the said account were deleted on 27.08.2008. Out of three beneficiaries, one was Mohd. Yusuf Gurkhoo in whose account the funds got transferred, however, he does not know the name of other two beneficiaries. He denied the suggestion that he had not made his report properly or was deposed falsely. The prosecution, thereafter, closed its evidence.
26. The statement of accused was thereafter recorded under Section 313 of Code of Criminal Procedure (in short 'Cr.P.C'), wherein accused denied all the allegations of prosecution witnesses and stated that he is falsely implicated in the present case and innocent. He also stated that he is a victim being Nigerian and has suffered racial discrimination at the hands of investigating agency. Convict, however, did not lead any defence evidence.
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27. Arguments of Ld. Addl. PP for CBI as well as Sh. R.A. Worso Zimik, Ld.Counsel for respondent heard.
28. Ld. Counsel for the CBI has stated that though CBI could not procure any technical evidence but on the basis of the oral evidence, Ld. Trial Court has rightly convicted the accused. On the other hand, Ld. Defence Counsel has argued that there was no evidence absolutely against the accused and the persons who were the actual beneficiaries were cited as witnesses in the chargesheet.
29. Perusal of the chargesheet and the documents shows that the testimony of Mohd. Ishtiyak is in favour of CBI/prosecution and he has deposed that the amount was handed over to the accused at his resident at Greater Noida after deducting the amount of Rs.5,000/. Mohd. Ishtiyak had also stated that he has sent the details of the bank account, ATM Card and ATM Pin number of the accused from his mobile No.9911339632. The mobile number 9911339632 is in the name of Sh. Haider Raza, as per Ex.PW8/6. Sh. Haider Raza is PW16 who has clearly deposed that he had given his photograph to Mohd. Ishtiyak alongwith ID proof for issuance of mobile Sim card for his personal use and the photograph on the Customer Application Form (CAF) Ex.PW8/6 is the same which was handed over to Mohd. Ishtiyak for issuance of mobile Sim card. During the testimony of Mohd. Ishtiyak, he has stated that the mobile number 9911339632 was used by him.
30. Further perusal of the testimony of the IO recorded before the Ld. Trial Court on 02.12.2016 reveals that he has stated that he had sent a letter dated 05.12.2008 Ex.PW18/4 to the Director (GEQD), Hyderabad for Pages: 21 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.
CA No.241/2017 Freeman Anosike Aluma Vs. CBI examination of three mobile phones and two Sim cards. The result of the examination on these three mobile phones and two Sim cards was not available on the file of the Ld. Trial Court. On further clarifications from the Ld. Counsel for CBI, it was revealed that the result of the examination of three mobile phones and two Sim cards from Director (GEQD) Hyderabad was never filed before the Ld. Trial Court. It was desired by this court that copy of the result be placed before this court for proper disposal of the present case, however, today SI Ravi Kant has appeared and stated that the GEQD report is not with CBI at present and same is yet to be traced. It is further stated that if the original is not traced, a copy of the same would be collected from GEQD Department, Hyderabad and would be placed before the court. Though, it is orally submitted in the present court that the CBI does not wish to rely upon GEQD report of the examination of three mobile phones and two Sim cards but no such plea has been recorded before the Ld. Trial Court. PW18/IO in the present case, in his testimony has also not stated anything about the result and it seems that the Ld. Trial Court has totally ignored the facts that the three mobile phones and two Sim cards were sent to Director (GEQD) Hyderabad for examination by the IO and the result/expert opinion in respect of the said articles was never placed before the Ld. Trial Court by CBI. The said result/expert opinion on the basis of examination of three mobile phones and two Sim cards was a very vital piece of evidence and the present case should not have been decided without perusal of the said report/expert opinion. Nothing has been stated in the judgment to primafacie establish that the Ld. Trial Court was even aware of this aspect and therefore, it is evidence that the Ld. Trial Court convicted the accused in total ignorance of the fact that the result/expert opinion regarding examination of three mobile phones and two Sim cards was never placed before the Ld. Trial Court and was withheld by the state/prosecution.
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31. Keeping in view of the above all, order passed by the Ld. Trial Court stands set aside and the matter is remanded back to the Ld. Trial Court or its successor with directions to take into account the report/expert opinion of GEQD, Hyderabad and reappreciate the prosecution evidence in the light of the report/expert opinion of GEQD, Hyderabad and thereafter, pass a fresh judgment. Accordingly, appeal is allowed. Appellant is directed to appear before the Ld. Trial Court on 27.10.2018.
32. It is further directed that the result/expert opinion regarding examination of three mobile phones and two Sim cards be obtained from Director (GEQD) Hyderabad and be placed before the Ld. Trial Court as per law. In case, CBI wishes to place reliance on the said result/expert opinion, witnesses to prove the said report/expert opinion be summoned and examined before the Ld. Trial Court and if, the CBI does not wish to rely upon the said result/expert opinion, the said plea should also be recorded before the Ld. Trial Court and after perusal of the said report/expert opinion, the evidence be reappreciated by the Ld. Trial Court to come to any conclusive or definite opinion regarding the guilt of the accused.
33. Appeal is accordingly disposed off. Copy of this order be sent to the Ld. Trial Court. Trial Court Record be also sent back. Appeal file be consigned to record room.
Digitally signedKIRAN by KIRAN BANSAL Announced in the open court BANSAL Date: 2018.10.18 15:34:27 +0530 on this 16th Day of October, 2018 (Kiran Bansal) Special Judge07 (PC Act Cases of ACB, GNCTD) Central District, THC Delhi/16.10.2018 Pages: 23 of 23 (Kiran Bansal) Spl. Judge07 (Central), (PC ActACB), Delhi.