Bangalore District Court
(Rep. By Sr.App) vs Being The Clerk/Servant Has Committed ... on 22 February, 2021
C.C.No.14674/2017
1
IN THE COURT OF THE I st ADDL.CMM: BENGALURU
Dated this the 22 nd day of February 2021.
Present: Shri Bhat Manjunath Narayan,
B.Com., LL.B.
Ist Addl. C.M.M BENGALURU.
C.C.No.14674/2017
State by Airport Police Station
Bengaluru. ....Complainant
(Rep. by Sr.APP)
Vs
Kusuma Gowda D/o L.Nagaraju,
aged 24 years, R/o No.318,
Lakshminarasimhaswamy Nilaya,
Opp. Ganesha temple, Old Bank colony,
Konanakunte, Bengaluru. .....Accused
(Rep. by Santhosh B.)
1. Sl. No. of the case : CC No.14674 of 2017
2. The date of commission of : 07.11.2012 to 24-11-2014
the ofence
3. Name of Complainant : Rajeev
4. Name of the accused : As stated above
5. The ofences complained or : U/s 408, 420, 511 of IPC
proved R/w sec.66 of I.T. Act.
6. Plea of the accused and their : Pleaded not guilty
C.C.No.14674/2017
2
examination
7. Date of Commencement of : -----
evidence
8. Date of Closing of : -----
prosecution evidence
9. Opinion of Judge : Accused not guilty
10. Date of Judgment : 22.02.2021
(Bhat Manjunath Narayan)
Ist Addl. CMM., Bengaluru.
C.C.No.14674/2017
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JUDGMENT
That, Airport police have fled charge sheet against the accused alleging that the accused has committed an ofence punishable under Section 408, 420, 511 of IPC R//w sec.66 of Information Technology Act.
2. The allegations made in the charge sheet are as under:
It is alleged in the charge sheet that the accused was working as Assistant Sales Manager in Royal Arcade Hotel, KGA road, Kodihalli, Bengaluru from 07-11-2012 to 24-11-2014. It is further stated in the charge sheet that the company has given ofcial e-mail ID namely [email protected] to accused. It is the case of the prosecution that the accused used to transfer the confdential e-mail received in ofcial e-mail ID [email protected] to her personal e-mail ID [email protected] . It is further stated by the prosecution that the accused has given confdential information pertaining to Royal orchid Hotel and others and thereby committed an ofence of criminal breach of trust, cheating by using computer device and thereby committed an ofence punishable under section 408, C.C.No.14674/2017 4 420, 511 of IPC R/w sec.66 of Information Technology Act.
3. One Rajeev Vaidyanathan who is the Assistant I.T. Director of Royal Orchid Hotel has fled complaint on 13-8-2015 with respect to alleged Act and Airport PS Cr.No.119/2015 has been registered against the accused for the ofence punishable under section 408, 418 of IPC R/w sec.66 of Information Technology Act. The Investigating Ofcer has visited the spot and seized computer system used by the accused Kusuma Gowda by preparing mahazar in the presence of C.W.3 Rahul and C.W.4 Shivangi. The hard disc seized from the computer used by the accused in Royal Orchid Hotel was sent to forensic analysis and to analyze information regarding E-mail received to [email protected] and e-mail sent to [email protected] . After recording the statement of hotel employees and analysis report given by expert, the Investigating Ofcer came to a conclusion that the accused being the clerk/servant has committed an ofence punishable under section 408, 420, 511 of IPC R/w sec.66 of Information Technology Act. Accordingly, charge sheet has been fled against accused.
4. After fling of charge sheet cognizance for the ofence punishable under section 408,420,511 of IPC R/w C.C.No.14674/2017 5 sec.66 of Information Technology Act is taken and the presence of accused is secured by issuing summons. The accused is released on bail. Copy of charge sheet is supplied to the accused as required under sec.207 of Cr.P.C.
5. After hearing prosecution and counsel for accused, Charge for the ofence punishable under section 408, 420, 511 of IPC R/w sec.66 of Information Technology Act is framed against the accused. Accused pleaded innocence and as such prosecution has been directed to adduce oral and documentary evidence to prove the guilt of the accused.
6. In order to prove the guilt of the accused for the ofence punishable under section 408, 420, 511 of IPC R/w sec.66 of Information Technology Act, summons and proclamations were issued to C.W.1 to 10 to secure their presence. However, in-spite of issuance of repeated NBWs and proclamation, C.W.1 to 10 are not present before this court and as such prayer of learned Sr.APP to issue summons/ NBW to C.W.1 to 10 was rejected.
7. As there is no incriminating evidence against the accused, statement of accused under Section 313 of Cr.P.C. is dispensed with.
C.C.No.14674/2017 6
8. On the basis of charge sheet allegation, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubt that the accused being the employee of Royal Orchid Hotel from 7-11-2012 to 24-11-2014 has transferred confdential information from [email protected] to her personal e-mail ID [email protected] and thereby committed an ofence punishable under Section 408 of IPC?
2. Whether the prosecution proves beyond reasonable doubt that the accused after transferring the confdential e-mail gave the same to others and thereby cheated Hotel Royal Orchid and thereby committed an ofence punishable under Section 420 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that the accused attempted to sell the information to competitors and thereby committed an ofence punishable under Section 511 of IPC?
4. Whether the prosecution proves beyond reasonable doubt that the accused by using computer system and e-mail ID [email protected] has transferred confdential e-mail to her C.C.No.14674/2017 7 personal account illegally and thereby committed an ofence punishable under Section 66 of Information Technology Act?
5. What order?
9. Heard Counsel appearing for the accused and learned Sr.APP. and my fndings on the above points are as under:
Point No.1 to 4: In the Negative Point No.5 : As per fnal order, for the following:
REASONS Point No.1 to 4: -
10. Point No.1 to 4 are taken for common discussion as they are arising out of same incident and in order to avoid repetition. However, separate fnding has been given to each point.
11. That, it is alleged in the charge sheet that the accused has transferred confdential information available to her as an employee to her personal e-mail and tried to sell the same to the competitors and thereby committed an ofence 408, 420, 511 of I.P.C R/w sec.66 C.C.No.14674/2017 8 of Information Technology Act. In order to prove the guilt of the accused, out of ten witnesses cited in the charge sheet, none were examined by the prosecution. Even proclamation was issued to the witnesses to secure their presence. In-spite of issuance of proclamation also, prosecution has failed to secure the presence of witnesses including Investigating ofcer. This being the case, this court has rejected the prayer of learned Senior APP to once again re-issue summons and NBWs to the witnesses. There is no oral evidence to prove the guilt of the accused in this case.
12. I have perused the documentary evidence available fled along with charge sheet. It is clear from the materials that the accused was working as an Assistant Sales Manager in Hotel Royal Orchid. It is stated in the complaint itself that she has tendered her resignation on 12-11-2014, complaint is fled on 13-8-2015 i.e., almost ten months from the date of resignation of accused. The hard device was seized on C.C.No.14674/2017 9 24-8-2015 by preparing Mahazar. There is no material or document to show that sales11 @roayalorchidhotels.com was assigned to accused to deal with ofcial communication. Apart from this there is no document available in the charge sheet to show that [email protected] is the personal e-mail ID of accused. Of course, the expert has given report analyzing the hard disc stating that 87 e- mails were sent from [email protected] to [email protected] as could be recovered from the hard disc seized by the Investigating ofcer. Some of the print outs of e-mails were submitted along with charge sheet. E-mail submitted along with charge sheet were sent on 24-11-2014. As per the complaint itself the accused resigned from the post of Assistant Sales Manager on 12-11-2014. So, the e-mail print outs produced is sent on 24-11-2014 i.e., after resignation of accused from the Royal Orchid Hotel. Since prosecution has not produced any oral evidence and the documentary evidence is also that of after resignation of C.C.No.14674/2017 10 accused, one cannot say that the accused is the person who has sent mail to bublykusum@gma il.com from [email protected] . Apart from this, the hard disk which is examined by an expert was seized on 24-8-2015 i.e., after 10 months from the date of resignation of accused. Therefore, in these ten months many people would have accessed the computer alleged to have been used by the accused during her employment in Royal Orchid Hotel. Apart from this as there is no evidence to show that [email protected] was assigned to accused, in my opinion ofence of 408 of IPC is not at all attracted and there is no misappropriation/ embezzlement of information as alleged.
13. Apart from this, in the charge sheet it is not clearly stated that to whom the accused has given confdential information pertaining to Royal Orchid Hotel. This being the case from the documents produced along with charge sheet also are not helpful to prove the ingredients of ofence under section 408, 420, 511 of IPC C.C.No.14674/2017 11 R/w sec.66 of Information Technology Act. So, in the absence of oral evidence as well as documentary evidence which can be considered by this court, prosecution has failed to prove the ingredients of ofences mentioned in the charge-sheet against the accused. Accordingly, I answer point No.1 to 4 in the negative.
Point No.5: -
14. In view of discussion and conclusion arrived at point No.1 to 4, accused is entitled to be acquitted. Hence I proceed to pass following:
ORDER Acting under Section 248(1) of Cr.P.C. the accused is acquitted for the ofence punishable under Section 408, 420, 511 of IPC R/w section 66 of Information Technology Act.
The bail and surety bond of the accused stand canceled.
(Dictated to the stenographer, transcribed by her, revised and then corrected by me and then pronounced in open court on this the 22nd day of February 2021) .
(Bhat Manjunath Narayan) I Addl. CMM., Bengaluru.
st C.C.No.14674/2017 12 ANNEXURE List of witnesses examined for prosecution :-
NIL List of exhibits marked for prosecution :- NIL List of material object : NIL List of documents marked for defence:- NIL List of documents marked for defence:- NIL (Bhat Manjunath Narayan) Ist Addl. CMM., Bengaluru.