Bangalore District Court
State By Cyber Crime Police Station vs 3. Darshan Singh Saini S/O Kartar Singh ... on 27 January, 2017
IN THE COURT OF THE I ADDL.C.M.M, Bengaluru
Present: Smt. Hema Pastapur
B.A.,LL.B.,
I Addl. C. M. M, Bengaluru
C.C.No.16051/2014
Dated this the 27th day of January 2017
Judgment under section 355 of the Code of Criminal Procedure
Complainant:- State by Cyber Crime Police Station, C.I.D.
Bengaluru.
(By Learned Senior Assistant Public Prosecutor)
VS
Accused:- 3. Darshan Singh Saini s/o Kartar Singh Saini,
age:56 years, r/o No.402, Devki Building,
Plot no.115, Sector, 50E,
Seawoods, Navi Mumbai 400706.
(By Shri K. P. Advocate)
(Accused no.1, 2, 4 to 8- no charge sheet has been
filed)
2 C.C.No.16051/2014
Offences complained : U/sec 403 r/w sec 37 of Indian Penal Code
and u/sec 66 of the Information Technology
Act.
Opinion of the Court : Accused no.3 is not found guilty
Date of Judgment : 27-01-2017.
JUDGMENT
1. That, the Police Inspector of Cyber Crime Police Station, C.I.D, Bengaluru, has filed the Final report against the accused no.3 for the offence punishable under section 403 r/w section 37 of the Indian Penal Code and under section 66 of the Information Technology Act.
2. That, the gist of the prosecution is that, the accused no.1 and 2 with their common intention to extort the money from CW1 have blackmailed him through their mobile nos.00448719155483 and 07838709426 and made him to remit sum of Rs.53,800/- in current account bearing no.074005000072.
It is further allegation of the prosecution that, the account bearing no.074005000072 is belonging to the company of the accused no.3 i.e., Satguru Hiring company and the accused no.3 being fully aware that he is not a rightful person to withdraw the said 3 C.C.No.16051/2014 amount had withdrawn the said amount through cheque and misappropriated the same.
3. That, on complaint being lodged the Cyber Crime Police, C.I.D. Bengaluru, have registered the case. That, the Investigating Officer after completion of investigation filed the Final report against the accused no.3 for alleged offences.
4. That, this court after taking the cognizance of the aforesaid offences issued summons to the accused no.3. That, the accused no.3 appeared before this court through his Learned counsel and he was enlarged on bail. That, the provisions of section 207 of Code of Criminal Procedure, have complied here with. That, the charge of the accused no.3 has framed and read over to him in language known to him and he has not pleaded guilty and claimed to be tried. That, after completion of prosecution side evidence the statement of accused no.3 as contemplated under section 313 of Code of Criminal Procedure, has recorded and read over to him and he denied all incriminating evidence appearing against him and not chosen to lead either oral or documentary evidence on his behalf. 4 C.C.No.16051/2014
5. That, I have heard the arguments and perused the materials placed on record. That, the following points arise for My consideration and determination:-
1. Whether the prosecution has proved beyond all reasonable doubt that, the accused no.3 has misappropriated sum of Rs.53,800/- which was remitted by CW1 in his company's account bearing no.074005000072 and thereby has committed the offence punishable under section 403 r/w 37 of the Indian Penal Code?
2. Whether the prosecution has proved beyond all reasonable doubt that, the accused no.3 has committed the offence punishable under section 66 of the Information Technology Act?
3. What order?
6. That, the prosecution to prove its above case has got examined PWs1 to 4 and got marked the documents at EXsP1 to P19 and closed its side.
7. That, My answer to the aforesaid points are as under:-
Point No.1:- In the NEGATIVE Point No.2:- In the NEGATIVE Point No.3:- As per the final order for the following:- 5 C.C.No.16051/2014
REASONS
8. Points No.1 and 2:- That, as these two points are interlinked, I have taken them for joint discussion to avoid repetition of facts.
It is specific allegation of the prosecution that, the accused no.1 and 2 with their common intention to extort the money from CW1 have blackmailed him through their mobile nos.00448719155483 and 07838709426 and made him to remit sum of Rs.53,800/- in current account bearing no.074005000072 and the said account is belonging to the company of the accused no.3 i.e., Satguru Hiring company and the accused no.3 being fully aware that he is not a rightful person to withdraw the said amount had withdrawn by cheque and misappropriated the same.
It is pertinent to note here that, the prosecution to prove its above case has got examined CW7-Shri C.Kiran s/o G.H.Chikkahanumanthaiah-the Investigating Officer as PW3. It is pertinent to note here that, PW3 in his examination- in- chief has deposed that on 07-12-2012 he received the complaint from CW1 and on the basis of said complaint he registered the case and through E-mails sought the information from Operation Managers of 6 C.C.No.16051/2014 State Bank of India, HDFC and ICICI Bank, Bommanahalli branch and on 10-12-2012 he sent the mail to Nodal Officer of Vodafone, Bengaluru, for providing the information about the mobile no.783870946 and also sent the mail to MTS Mobile Services, Bengaluru, for providing information about the mobile no.9141388816 and also MTS no.8453008828. It is to be noted here that, PW3 has further deposed that he also sent E-mail to Google Manager for providing information pertaining to E-mail ID of CW1 i.e., [email protected] and on 11-12-2016 he received from ICICI Bank the remittance counterfoil pertaining to account bearing no.007400500072 and on 13-12-2012 he received CDR about the said mobile numbers and on 06-03-2013 he sent E-mail to MTNL Mumbai for providing information pertaining to the landline bearing no.022-24036615 and on 30-03-2013 he received the said information. It is pertinent to note here that, PW3 has further deposed hat on 06-04-2013 he visited the ICICI Bank, Siyam cirle, Mumbai and issued notice to the said bank authorities for providing him the information pertaining to the said account number and recorded the statement of CW6 and on 05-08-2013 he sent a letter 7 C.C.No.16051/2014 to the ICICI Bank for furnishing the details pertaining to withdrawal of amount of sum of Rs.53,800/- from account no.07400500072 and on 26-12-2013 he received the remittance slip and original cheques from Area Manager.
9. It is pertinent to note here that, the prosecution to prove its above case has further got examined CW5-Shri Suresh Govan s/o Babu Rao Govan-the Branch Manager as PW1. It is to be noted here that, PW1 in his examination-in-chief has deposed that on 06-04-2013 he received a letter from Cyber Crime Karnataka Police, wherein they have requested for providing the information pertaining to the details of transaction happened in Satguru Hiring Company and they have provided the said information and also provided the computer print out statement of account of said company and also provided the self attested copy of cash withdrawn cheque for Rs.2,25,000/- and self attested copy of PAN card of CW6.
10. It is pertinent to note here that, the prosecution to prove its case has further got examined CW4-Shri Bheemaiah s/o Ayyappa-the Banker as PW2. It is pertinent to note here that, PW2 in his examination-in-chief has deposed that in the month of September 8 C.C.No.16051/2014 2013 the C.I.D. have asked for providing them the deposit slip of CW1 which was made in the name of accused no.3 and also asked for providing two cheques ending with no.77 and 78. It is to be noted here that, PW2 has further deposed that they have provided the original deposit slip, copy of the cheque ending with no.77 and the original cheque ending with no.78 to the C.I.D. police.
11. It is pertinent to note here that, the prosecution to prove its case has further got examined CW6-Shri Bhupendra Singh s/o Darshan Singh as PW4. It is to be noted here that, PW4 is a son of accused no.3 and he turned hostile and not supported the case of the prosecution.
12. It is pertinent to note here that, in the instant case admittedly the accused no.3 is facing the trial for the offence punishable under section 403 r/w section 37 of the Indian Penal Code and under section 66 of the Information Technology Act.
13. It is to be noted here that, at this juncture I have gone through the provisions of section 403 of the Indian Penal Code and which contemplates as under:
9 C.C.No.16051/2014
Whoever dishonestly misappropriates or converts to his own use any moveable property, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
It is to be noted here that, misappropriation is the wrongful setting apart or assigning of a sum of money to a purpose or use to which it should not be lawfully assigned or set apart. It is to be noted here that, to constitute criminal misappropriation, the property must have come into the possession of the accused innocently in the first instance and in the absence of any overt act on the part of the accused no dishonest motive can be imputed to him that he has committed an offence.
It is to be noted here that, thrust of the provision is to gain/loss. It is to be noted here that, all that is required is that there should be an intention of causing such gain or loss which would amount to dishonesty.10 C.C.No.16051/2014
It is pertinent to note here that, section 24 of the Indian Penal Code defines the "word dishonestly" and which contemplates as follows:
DISHONESTLY: Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing dishonestly.
It is further pertinent to note here that, section 23 of the Indian Penal Code defines wrongful loss as, WRONGFUL LOSS: is the loss by unlawful means of property to which the person losing it is legally entitled.
It is further pertinent to note here that, section 23 of the Indian Penal Code also defines wrongful gain as, WRONGFUL GAIN: is the gain by lawful means of property to which the person gaining is not legally entitled.
It is pertinent to note here that, section 25 of the Indian Penal Code defines fraudulently as, FRAUDULENTLY: a person is said to do a thing fraudulently if he does that thing with the intent to defraud but not otherwise.11 C.C.No.16051/2014
It is to be noted here that, the ownerless property, which does not belong to any cannot be the subject of criminal misappropriation. Similarly, abandoned property cannot be the subject of criminal misappropriation. .
It is further pertinent to note here that, dishonestly may be proved by evidence, or may be presumed from the circumstances, but under no circumstances it can be assumed as a matter of course.
It is further pertinent to note here that, ordinarily mere retention of money will not suffice to constitute the offence of criminal misappropriation. There should be some indication which justifies a finding that the accused, had the intention of wrongly keeping the money.
14. It is pertinent to note here that, to hold that the accused has committed the offence punishable under section 66 of the Information Technology Act, it is the bounden duty of the prosecution to prove that the accused has committed either of the offence punishable under section 43 of the said Act. It is pertinent to note here that, section 66 of the Act, runs as under: 12 C.C.No.16051/2014
66. Computer related offences - If any person, dishonestly or fraudulently, does any act referred to in section 43, he shall be punishable with imprisonment for a term which may extent to three years or with fine which may extend to fie lakh rupees or with both.
Explanation-For the purposes of this section-
(a) the word "dishonestly' shall have the meaning assigned to it in section 24 of the Indian Penal Code (45 of 1860);
(b) the word fraudulently" shall have the meaning assigned to it in section 25 of the Indian Penal Code (45 of 1860).
It is pertinent to note here that, section 43 of the said Act contemplates as under:
43. (Penalty and compensation) for damage to computer, computer system, etc- If any person without permission of the owner or any other person who is in-
charge of a computer, computer system or computer network, 13 C.C.No.16051/2014
(a) accesses or secures access to such computer, computer system or computer network (or computer resource);
(b) downloads, copies or extracts any data, computer database or information from such computer, computer system or computer network including information or data held or stored in any removable storage medium;
(c) introduces or causes to be introduced any computer contaminant or computer virus into any computer, computer system or computer network;
(d) damages or causes to be damaged any computer, computer system or computer network, data, computer database or any other programmes residing in such computer, computer system or computer network;
(e) disrupts or causes disruption of any computer, computer system or computer network;
(f) denies or causes the denial of access to any person authorised to access any computer, computer system or computer network by any means;
14 C.C.No.16051/2014
(g) provides any assistance to any person to facilitate access to a computer, computer system or computer network in contravention of the provisions of this Act, rules or regulations made there under;
(h) charges the services availed of by a person to the account of another person by tampering with or manipulating any computer, computer system, or computer network;
(i) destroys, deletes or alters any information residing in a computer resource or diminishes its value or utility or affects it injuriously by any means;
(j) steel, conceals, destroys or alters or causes any person to steal, conceal, destroy or alter any computer source code used for a computer resource with an intention to cause damage, (he shall be liable to pay damages by way of compensation to the person so affected).
Explanation- For the purposes of this section- 15 C.C.No.16051/2014
(i)"computer contaminant" means any set of computer instructions that are designed-
(a) to modify, destroy, record, transmit data or programme residing within a computer, computer system or computer network; or
(b) by any means to usurp the normal operation of the computer, computer system, or computer network;
(ii) "computer database" means a representation of information, knowledge, facts, concepts or instructions in text, image, audio, video that are being prepared or have been prepared in a formalised manner or have been produced by a computer, computer system or computer network and are intended for use in a computer, computer system or computer network;
(iii) "computer virus" means any computer instruction, information, data or programme that destroys, damages, degrades or adversely affects the performance of a computer resource or attaches itself to another computer resource and 16 C.C.No.16051/2014 operates when a programme, data or instruction is executed or some other event takes place in that computer resource;
(iv) "damage" means to destroy, alter, delete, add, modify or rearrange any computer resource by any means;
(v) "computer source code" means the listing of programmes, computer commands, design and layout and programmer analysis of computer resource in any form.
15. It is pertinent to note here that, as stated above it is the allegation of the prosecution that the accused no.3 has misappropriated the amount of sum of Rs.53,800/-. It is pertinent to note here that, at this juncture it is very much necessary to go through the cross-examination of PW3. It is pertinent to note here that, PW3 in his cross-examination at page no.6 at 10th line has deposed that, "¤¦-5gÀAvÉ 2,25,000-00gÀÆUÀ¼ÀÄ qÁæ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉAzÀgÉ ¸Àj. ZÁ¸Á-1gÀªÀgÀÄ ¸ÀzÀj zÀÆgÀ£ÀÄß 50 ¸Á«gÀ gÀÆUÀ½UÉ PÉÆnÖgÀÄvÁÛgÉ JAzÀgÉ ¸Àj".
It is pertinent to note here that, PW3 at page no.7 at 8th line has deposed that, " ZÁ¸Á-1gÀªÀgÀÄ vÀªÀÄä ºÀt DgÉÆæ¬ÄAzÀ 17 C.C.No.16051/2014 zÀÄgÀÄ¥ÀAiÉÆÃUÀªÁVgÀÄvÀz Û ÉAzÀÆ £À£Àß ¸ÀªÀÄPÀëªÀÄ AiÀiÁªÀÅzÉà ºÉýPÉAiÀÄ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è JAzÀgÉ ¸Àj".
It is further pertinent to note here that, PW3 in his cross-examination at page no.5 at 1st line has deposed that, "¸ÀzÀj zÀÆj£À°è vÀ¯É ªÀÄgɹPÉÆArgÀĪÀ DgÉÆævÀgÀÄ EµÀÄÖ zÀÄqÀØ£ÀÄß ¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgt À zÀ DgÉÆæAiÀÄ SÁvÉUÉ dªÀiÁ ªÀiÁqÀ¯ÁVgÀÄvÀÛzÉ JAzÀÄ £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀÅ¢®èªÉAzÀgÉ ¸Àj. ¸ÀzÀj zÀÆj£À°è ¥Àæ¸ÀÄÛvÀ ¥ÀæPÀgÀtzÀ DgÉÆæAiÀÄ SÁvÉ ¸ÀASÉåAiÀÄ£ÀÄß £ÀªÀÄÆzÀÄ ªÀiÁrgÀĪÀÅ¢®èªÉAzÀgÉ ¸Àj".
It is pertinent to note here that, from the said admissions of PW3 it clearly appears that the accused no.3 has not committed any offence as alleged by the prosecution. It is further pertinent to note here that, in the instant case from the entire evidence of PW3 it appears that he has not made any attempt to trace out the main culprits. It is to be noted here that, in the instant case inspite of giving sufficient opportunities the concerned police have failed to secure the CW1. It is further pertinent to note here that, from perusal of EXP2 it clearly appears that some corrections have been 18 C.C.No.16051/2014 made in account number and PW1 in his cross-examination has admitted the same. It is to be noted here that, the prosecution has not offered any explanation for the said corrections. It is further pertinent to note here that, from perusal of EXP12 it clearly appears that some alterations have been made in respect of amount and PW2 in his cross-examination has admitted the same. It is to be noted here that, for the said fact also the prosecution has not offered any explanation. It is pertinent to note here that, the prosecution has also failed to prove how the alleged amount was remitted to the account of the present accused. It is to be noted here that, from over all evidence of witnesses on record it clearly appears that the accused no.3 has been falsely implicated in present case. It is to be noted here that, in the instant case the prosecution has utterly failed to prove the essential requisites of section 403 of the Indian Penal Code. It is pertinent to note here that, in the instant case there is no material to hold that the accused no.3 has committed the offence punishable under section 66 of the Informatin Technology Act. It is to be noted here that, In view of My above findings and without much discussion, points no.1 and 2 are answered in the NEGATIVE. 19 C.C.No.16051/2014
16. Point No.3:- That, as discussed on points no.1 and 2, I proceed to pass the following:-
ORDER That, acting under section 248(1) of Code of Criminal procedure, the accused no.3 is acquitted for the offence punishable under section 403 r/w section 37 of the Indian Penal Code and under section 66 of the Information Technology Act. That, the bail and surety bonds of the accused no.3 are stands cancelled.
That, the accused no.3 shall comply with the provisions of section 437(A) of Code of Criminal procedure.
(Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open Court on this the 27th day of January 2017).
(Hema Pastapur) I Addl. C. M. M, Bengaluru.
ANNEXURE List of witnesses examined on behalf of prosecution PW1: Suresh Govan s/o Baburao Govan;
PW2: Bheemaiah s/o Ayyappa;
20 C.C.No.16051/2014
PW3: Kiran s/o G.H.Chikkahanumanthaiah and
PW4: Bhoopendrasingh s/o Dharshan Singh.
List of documents marked on behalf of prosecution EXP1: Notice issued to ICICI Bank, Siyom cirle, Mumbai; EXP2: Copy of account opening form of Satguru Hiring Company;
EXP3: Copy of PAN card of accused no.3;
EXP4: Computer print outs of statements of account
of accused no.3 company (59 pages);
EXP5: Copy of cheque for Rs.2,25,000/-;
EXP6 Copy of entries in back side of EXP5;
EXP7: Copy of PAN cord of PW4-CW6;
EXP8: Covering letter;
EXP8(a): Signature of PW1;
EXP9: Original cheque;
EXP10: Notice to the Operation Manager,
ICICI Bank, Bommanahalli branch;
EXP11: Letter dated 09-01-2014;
EXP11(a): Signature of PW2;
EXP12: Original deposit slip;
21 C.C.No.16051/2014
EXP13: Letter of ICICI Bank dated 23-12-2013;
EXP14: Complaint;
EXP14(a): Signature of PW3;
EXP15: FIR;
EXP16: Police notice to Nodal officer MTS mobile;
EXP16(a): Signature of PW3;
EXP17: Covering letter and CDR CCDR (9 pages);
EXP18: Counterfoil of EXP2 and
EXP19: Statement of PW4.
List of material objects marked on behalf of the prosecution Nil List of witnesses examined on behalf of the accused no.3 Nil List of documents marked on behalf of the accused no.3 Nil Date:27.01.2017 (Hema Pastapur) Place: Bengaluru I Addl. C. M. M, Bengaluru 22 C.C.No.16051/2014 27-01-2017 State by Sr.APP.
Accused no.3- C/B For judgment.
(Judgment pronounced in the Open Court, vide separate order) ORDER That, acting under section 248(1) of Code of Criminal procedure, the accused no.3 is acquitted for the offence punishable under section 403 r/w section 37 of the Indian Penal Code and under section 66 of the Information Technology Act. That, the bail and surety bonds of the accused no.3 are stands cancelled.
That, the accused no.3 shall comply with the provisions of section 437(A) of Code of Criminal procedure.
(Hemapastapur) I Addl.CMM, Bengaluru.23 C.C.No.16051/2014