Bangalore District Court
State By vs Anurag Varma on 29 January, 2016
IN THE COURT OF LXIII ADDL., CITY CIVIL & SESSIONS
JUDGE, BANGALORE CITY.
(CCH-64)
DATED THIS THE 29TH DAY OF JANUARY 2016.
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6. PRESENT
SRI.JOSHI VENKATESH, B.A.LL.B,(Spl),
LXIII Addl., City Civil & Sessions Judge,
Bangalore.
Crl.Appeal No.460 of 2012
Appellant : State by
Cyber Crime Police Station,
Bangalore.
(By Public Prosecutor, Adv.,)
/Vs/
Accused : Anurag Varma,
S/o Rampal Varma,
Aged about 34 years,
No.223, Main Road,
Gandhi Colony,
Mujaffar Nagar & District,
Uttar Pradesh.
(By Sri. S.D.S., Adv., )
2 Crl.A.460/2012
JUDGMENT
1. Appellant/State of Karnataka through cyber crimes police station filed this appeal U/Sec.378 (1)(A) of Cr.P.C., praying this Court to set-aside the judgment of acquittal dated 09.02.2012 in C.C.No.22784/2009 passed by I ACMM, Bangalore in favour of accused no.3 Aanurag Verma and convict accused no.3 for the offence punishable U/Sec.66 of Information and Technology Act and Sec.420 of IPC, in the interest of justice.
2. Appellant is the State of Karnataka through Cyber Crime police station/Complainant and respondent is the accused no.3 in the trial court. For the sake of convenience in the judgment parties to the appeal are referred as per their ranks in the trail court.
3. Brief facts of the complainant's case are as under :
Complainant Christopher Verkey was having his account bearing No.0771610085620 in HDFC Bank ITPL branch Bangalore with online Banking facility to his account. On 15.12.2007 one unknown person from USA hacked into the complainant's account bearing No.0771610085620 and 3 Crl.A.460/2012 transferred Rs.1,34,500/- from the account of complainant to the ICICI Bank account bearing No.025501501798 of Accused No.3 situated at Koshambi Branch, Saihibabad, Ghaziabad. In turn accused no.3 who received the fraudulent money to his account in collusion with absconding accused no.2 and on the instructions of accused No.2, withdrawn the said amount from his account in ATM and handed over to absconding accused No.2. Thereby accused no.2 and 3 have committed the offence of hacking and cheating i.e. offence punishable under section 66 of I.T.Act and 420 of IPC.
On the basis of complaint lodged by complainant Christopher Varkey on 10.12.2007, Cyber Crime police registered case against unknown persons for the offence punishable under sec.66 of I.T.Act and 420 of IPC. After investigation filed charge sheet against accused no. 2 & 3 for the offence punishable under section 66 of I.T.Act and 420 of IPC by showing Accused no.1 as unknown and accused no.2 as absconding.
4. After receipt of charge sheet I ACMM registered case against accused no. 1 to 3 for the alleged offence. Accused no.1 is 4 Crl.A.460/2012 unknown. Accused no.2 is absconding. Hence case against accused no.2 is split up. Case against accused no.3 is proceeded with. Accused no.3 appeared before the court and released on bail. Charge framed. Accused no.3 not pleaded guilty.
5. In order to prove the case, prosecution got examined PW.1 to PW.4 and got exhibited Ex.P.1 to P.20 documents. During the pendency of case complainant is dead. Hence his son is examined by prosecution before the court. After closure of the evidence of prosecution, 313 CRPC statement of the accused no.3 was recorded. Accused no.3 denied the incriminating against him in prosecution evidence and did not adduce any evidence, but got marked Ex.D.1, D.1a to D.1 g and Ex.D.2.
6. After hearing the arguments, trial court acquitted accused no.3 for offence punishable U/Sec.66 of Information and Technology Act and Sec.420 of IPC. Hence aggrieved by the judgment passed by the trial court Complainant/State filed this appeal before this Court on the following grounds :
Trial court not considered the evidence led by the prosecution and documents exhibited. PW.1 is a Deputy 5 Crl.A.460/2012 Manager of HDFC Bank. He clearly stated regarding Ex.P.1 to P.4 documents. On going through the said documents it is seen that, accused No.3 in collusion with accused No.2 and other unknown person hacked the account of the complainant and transferred an amount of Rs.1,34,500/- to the account of accused No.3 , I.C.I.C. Bank, Gaziyabad. The said fact is not taken into consideration. Even though Ex.D.1a to D.1g discloses regarding receipt of money and withdrawal, prosecution also produced the documents regarding Cr.No.730/2007 of Malad police station, Mumbai.
Trial court has not taken into consideration of the said aspect. On perusal of the evidence of PW.1 to 4, it is very clear that, amount is transferred from the account of complainant to the account of accused No.3. Accused No.3 received the amount of Rs.1,50,000/- on 24.12.2007 to his account and returned Rs.1,50,240 to Deepak on 04.01.2008. Trial court has not taken into consideration of the same. Acquittal order passed by the trial court is not in accordance with law. On going through the evidence of the prosecution, accused No.3 with drawn the amount and gave it to some other person and used for his personal purpose.
6 Crl.A.460/2012 Hence prosecution proved its case alleged against the accused. Accordingly prayed this Court to allow the appeal and convict the accused for the alleged offences.
7. After registering the case, same is made over to this court for disposal in accordance with the law. This Court issued notice to the respondent/accused no.3 for his appearance. Accused no.3 appeared through advocate. LCR received.
8. Along with appeal prosecution filed application for condoning delay of 47 days in filing the appeal. Accused No.3 not filed nay counter to the said application. Said application is also taken into consideration along with main appeal.
9. Heard the arguments. Perused the records before the court.
10. The point that arise for consideration are:
Point No.1: Whether grounds shown by appellant are sufficient to condone the delay in filing the apeal?
Point No.2: Whether the judgment passed by the trial court is illegal, capricious and interference of this Court is necessary in the judgment passed by the trial court?
Point No.3 : What Order?
11. My findings on the above points are as under:
Point No.1: In the Affirmative,
Point No.2: In the Negative.
Point No.3 :As per the final order for the
following:
7 Crl.A.460/2012
REASONS
12. Point No.1: Prosecution filed application U/Sec.5 of the Limitation Act praying this Court to condone the delay of 47 days in preferring this appeal. In the affidavit filed in support of the application it is stated by the deponent that, on 09.02.2012 accused is acquitted. Case papers of this case received to office through Sr. APP office and D.D. offence on 03.07.2012. Hence there is some delay in filing the appeal. The delay is due to the pressure of working, nothing more than that. It is not intentional one.
Accordingly prayed this Court to allow the application.
13. This Court has to consider limitation application liberally to advance justice to the parties to the appeal or proceedings. No counter affidavit filed by accused no.3 denying the facts stated in the affidavit filed in support of the condonation of delay application. Keeping in view of the same, I am of the opinion that, reasons given by the prosecution for condoning the delay of 47 days in filing the appeal appears to be reasonable and acceptable one. Accordingly delay in filing the appeal is to be condoned. Hence Point No.1 is answered in the Affirmative.
8 Crl.A.460/2012
14. Point No.2 : After hearing the arguments, perused the records before the Court. It is the specific case of the prosecution that, Complainant Christopher Verkey was having his account bearing No.0771610085620 in HDFC Bank ITPL branch Bangalore with online Banking facility to his account. On 05.12.2007 one unknown person from USA hacked into the complainant's account bearing No.0771610085620 and transferred Rs.1,34,500/- from the account of complainant to the ICICI Bank account bearing No.025501501798 of Accused No.3 situated at Koshambi Branch, Saihibabad, Ghaziabad. In turn accused no.3 who received the fraudulent money to his account in collusion with absconding accused no.2 and on the instructions of accused No.2, withdrawn the said amount from his account in ATM and handed over to absconding accused No.2. Thereby accused persons have committed the offence of hacking and cheating i.e. offence punishable under section 66 of I.T.Act and 420 of IPC.
15. In order to prove the case, prosecution examined PW.1 to PW.4 and got exhibited Ex.P.1 to P.20 documents. PW.1 is Bank Manager, PW.2 is son of complainant, P.W.3 is I.O., 9 Crl.A.460/2012 PW.4 is Bank manager. Ex.P.1 is requisition letter given by IO to bank to furnish details of Bank accounts in the name of complainant, Ex.P.2 is the reply given by bank to the Ex.P.1 letter, Ex.P.3 is customer information given by bank, Ex.P.4 is Transaction period information of account of complainant, Ex.P.5 is complaint, Ex.P.6 is Extract of SB account of complainant, Ex.P.7 is FIR of this case, Ex.P.8 is FIR of 730/2007 of Malad police station, Ex.P.9 to P.11 are mahazars, Ex.P.12 to P.15 are statement of witnesses, (Ex.P.8 to 15 are in Marathi language. Translation not filed) Ex.P.16 is voluntary statement of accused No.3, Ex.P.17 is police notice issued to ICICI Bank manager, Ex.P.18 is reply given by Bank manager,Ex.P.19 is account opening form and Ex.P.20 is extract statement of account. Accused no.3 got marked Ex.D.1 and D.2 documents. Ex.D.1 is copy of extract of a/c.No.025501501798, Ex.D.1(a) is entry in account extract, Ex.D.1(b) is relevant entry, Ex.D.1(c) is relevant entry, Ex.D.1(d) is deductions, Ex.D.1(e) is entry regarding withdrawn of Rs.1,08,000/-, Ex.D.1(f), entry regarding deposit of Rs.68,500/- and Ex.D.1(g) entry 10 Crl.A.460/2012 regarding depositing of Rs.1,34,500/-. Ex.D.2 is letter from Malad police to IO.
16. PW.1 is the Deputy Manager of HDFC Bank. He stated before the Court that, as per the request made by Investigating Officer vide Ex.P.1 letter he furnished Ex.P.2 letter along with Ex.P.3 and P.4 documents. It is also stated that, this is the case where some amount is transferred from the complainant's account to the account of beneficiary by using Internet Banking Facility. In the cross examination this witness clearly stated that, layman cannot hack the account of the others and only the expert can do that. He also stated in his cross examination that, he do not know the person who transferred the amount from the account of the complainant. Evidence given by PW.1 is no way helpful to the prosecution to connect the guilt of the accused no.3 as alleged in the charge sheet. His evidence is not helpful to the prosecution. Hence it is not considered.
17. PW.2 is the son of the complainant. He deposed before the Court that, his father gave complaint before the Cyber Police Station as he found that amount of Rs.1,34,500/- debited from the account of his father on 5.12.2007. When 11 Crl.A.460/2012 he contacted the bank authorities it is made known that amount is transferred to the account of ICICI Bank. PW.2 and his father obtained the account number to which the amount is credited from the account advocate filed the complaint. In this case complainant is dead. Hence his son is examined before the Court as PW.2. He also stated that, there is illegal hacking into the account of his father. In the cross examination this witness stated that, he has no idea who hacked account of his father. After filing of the complaint they did not enquire the cyber crime police about the progress of the case. Hence evidence of PW.2 is not helpful to the prosecution to connect the guilt of the accused. Accordingly it is not taken into consideration.
18. PW.4 employee of ICICI Bank stated before the Court that, on 19.08.2008 he received request letter as per Ex.P.17 from Investigating Officer to furnish the account details. As per the request of the Investigating Officer he furnished the required documents as sought in the letter. Letter of ICICI Bank is marked at Ex.P.18. Account opening form of accused no.3 /Anurag Verma is marked at Ex.P.19. Account extract is marked at Ex.P.20. Evidence of PW.4 is also not 12 Crl.A.460/2012 helpful to the prosecution to connect the guilt of the accused. Hence it is not taken into consideration. Conclusion reached by the trial court regarding the evidence given by PW.1, PW.2 and PW.4 is not to be interfered with because trial court properly assessed the evidence led by PW.1, PW.2 and PW.4. Their evidence is no way helpful to the prosecution to connect the guilt of the accused.
19. The evidence remained for the consideration of the court is the evidence given by PW.3. PW.3 is the Investigating Officer of this case. On going through the charge sheet and statement of Investigating Officer it is very clear that, so far accused No.1 is not traced. He is unknown. Accused No.2 is not arrested. Accused no.2 is still absconding. Only accused No.3 is facing the trial before the trial court. In the examination-in-chief PW.3, the Investigating Officer stated that, after receipt of the complaint he registered the case and requested the bank authorities to submit the documents. They have given the same. He also obtained I.P. address of beneficiaries which traced at America. He clearly stated in the examination-in-chief that, he was not 13 Crl.A.460/2012 able to obtain the details about the service provider. He also stated that, in the month of May 2009 he went on leave and further investigation is conducted by Mr. George D'souza, Dy.S.P. During his period accused No.3 appeared before him and released on bail. At the time of recording voluntary statement of accused No.3 name of accused no.2 is disclosed. He also received the case papers in connection with Cr.No.730/2007 of Malad police station. After returning from the leave he took up further investigation of the case and after verifying he submitted the charge sheet against the accused persons. In the examination in chief PW.3 no where deposed that in his investigation case is made out against accused no.3 for the offences alleged.
20. In the cross examination this witness stated that, during the course of investigation it is revealed that IP number is pertaining to America. When it is so, then he cold have traced the person who hacked into the account. But it is not done so. He clearly admits that, the person who was there in America as on that day only has transferred the funds. So examination-in-chief of PW.3 never shows involvement of accused no.3 in cheating the complainant. In the cross 14 Crl.A.460/2012 examination PW.3 further admits that, accused No.3 withdrawn the amount from his bank and re-deposited to the account of Deepak Sony. He also admits in the cross examination that, accused No.3 is not aware of the first 3 earlier transaction. It is also admitted by the Investigating Officer that, accused No.3 after noticing that there may be a fraudulent transaction of amount to his account has immediately issued a cheque in favour of Deepak Sony to the same amount. This witness also admits that, laymen cannot hack into the Internet Banking system and transfer the money. He also admits that, accused has stated in his voluntary statement Ex.P.16 that, one Gowtham and Raju have introduced accused No.2 to accused No.3 who requested him to give the bank account number so to transfer the amount from USA to his uncle who is interested to invest that amount in property in India. Said Gowtham and Raju are not examined before the court or their statement is recorded by IO. IO also admits that, accused No.3 in the month of December 2007 transferred amount to the extent of Rs.5,68,000/-, out of the same an amount of Rs.4,17,500/- is handed over to accused No.2.
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21. IO also admits that, "it is true that at the time of third transaction accused No.3 came to know that it was a fraudulent transfer. Hence he returned the amount to Deepak Sony". When it is so, then it is clear that there is no involvement of accused no.3 in the alleged scam. IO also admits in the cross examination that, it is true that after every transaction accused No.2 by approaching accused No.3 used to collect entire transferred amount. IO also admits that as entire amount was taken by accused No.2, no amount was left out in the account of accused No.3. IO also admits in the cross examination that, during the course of investigation, they have not recovered any amount from accused No.3. In the cross examination dated 17.10.2011 PW.3 admits that, during his absence Mr.George D'souza, Dy.S.P., taken further investigation of this case and recorded the voluntary statement of accused No.3 and received the case papers from Malad police station. Admittedly the case papers received from Malad police station are in Marathi language. Even the Investigating Officer not took pain to translate the Marathi language documents into English or Kannada version. Evasive answer 16 Crl.A.460/2012 is given in the cross examination that he was not able to arrange a translator. When it is so, then marking of Ex.P.8 to P.15 is not use at all. No reliance can be placed on them. Because they are not in the language of the court.
22. PW.3 further admits in the cross examination that, "it is true to suggest that, Mr. D'souza has conducted substantial portion of investigation of this case. He cannot assign any reason as to why he did not site Mr.D'souza as a charge sheet witness". When Mr.D'souza, Dy.S.P., conducted substantial part of the investigation and he is not examined before the Court, it goes to show that, case of the prosecution is not free from doubt. Non-examination of Mr.D'souza, Dy.S.P. is fatal to the case of prosecution. In the further cross examination he admits that "it is true that the documents collected will not help to show that accused No.3 has fraudulently got transferred the amount with dishonest intention. It goes to show that accused No.3 is innocent. IO has stated in the cross examination that, in the charge sheet it is alleged that, fraudulent transferring the funds to the account of accused No.3, accused No.1 and 2 together have misused 17 Crl.A.460/2012 the fund. When it is so, then acquittal of the accused no.3 is proper. The documents available before the court will not inspire the court to base conviction on the accused. Accused No.2 is absconding. So for accused no.1 is not traced and secured. There is no evidence before the court to show that accused N.3 in collusion with accused No.1 and 2 hacked into the account of the complainant and got transferred the amount fraudulently. Evidence avail before the court is not sufficient to convict the accused. Accused is entitle for benefit of doubt in his favour. Therefore, the trial court after clear perusal of the records before it comes to the conclusion that, evidence before the Court is not sufficient to connect the guilt of accused No.3. Accordingly acquitted accused No.3. The arguments advanced by the prosecution that, there is sufficient evidence to base conviction on the accused is not acceptable one. No proper grounds made out by the prosecution to make interference in the judgment of acquittal passed by the trial court against accused No.3. Hence there is no hesitation in coming to the conclusion that, no interference is required in 18 Crl.A.460/2012 the judgment passed by the trial court and accordingly, Point No.2 is answered in the Negative.
23. Point No.3: In view of the discussion made above and the findings given on point No.2, this court is of the opinion that appeal filed by the appellant/State deserves to be dismissed Accordingly I am going to pass the following:
ORDER
1. Appeal preferred by the appellant/State against judgment passed by I A.C.M.M., Bangalore, in C.C.No.22784/2009 dated: 09.02.2012 is dismissed.
2. Judgment passed by the trial court in C.C.No.22784/2009 dated: 09.02.2012 is hereby confirmed.
3. Office is directed to return the LCR along with copy of this judgment.
(Dictated to the Stenographer, the transcript revised by me and then pronounced in th the open court on this the 29 day of January 2016).
(JOSHI VENKATESH), LXIII Addl., City Civil & Sessions Judge, Bangalore.
19 Crl.A.460/2012