Bangalore District Court
Company And Hence With The Intention vs Who Was Ex-Employee Of Mid Day Infomedia on 8 April, 2015
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 8th day of April 2015.
Present: Sri Krishna Prasad Rao Kalmady,
B.A.,LL.B.,
I Addl.C.M.M.,Bangalore.
JUDGMENT U/s.355 Cr.P.C.
Case No. : CC No.32444/2010
Date of Offence : 16/08/2009
Name of complainant : State by Cyber Crime PS
Name of Accused : Firos. B.F.,
s/o.A.Faziludeen,
31 Yrs., R/o.Srimas,
Near Muslim High School,
Edava, Attingal,
Trivandrum District.
Kerala State.
Offence complained : U/s.66 of IT Act 2000
& Sec.465, 469 of IPC.
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 08/04/2015.
- - -
2 CC NO.32444/2010
JUDGMENT
1. The Deputy Superintendent of Police, Cyber Crime Police Station, Bangalore has filed the charge sheet against the accused alleging that, he had committed the offences punishable under Section 66 of Information Technology Act 2000 and Section 465 and 469 of IPC.
2. The case of the prosecution in brief is that the accused was an ex-employee of the Complainant's Company Mid Day Infomedia Limited, whose subscribers are from Bengaluru. On account of recession, accused was forced to resign from the Complainant's Company and hence with the intention of reeking vengeance though he was not supposed to use the keywords of Mid Day Infomedia Mobile Alert Program, had illegally hacked into the said mobile alert program on 16/08/2009 between 11.00 pm to 11.30 pm by using his father-in-law's (Cw.7) computer system with IP No.117.119.5.94 and created 3 CC NO.32444/2010 forged electronic record of hatred news items namely "Bomb blast kills 10 in Majestic" "Swine Flu kills seven in Bengaluru. Two techies killed in Wipro. Three others killed in Infosys" and sent those messages to the mobile subscribers of Mid Day by posting them on their website. The said messages were sent with the intention of taking revenge and harming the reputation of Mid Day and thereby accused had committed the offences under Section 66 of Information Technology Act 2000 and Sections 465 and 469 of IPC.
3. Cognizance of the offences was taken and the presence of the accused was secured and subsequently he was released on bail.
4. Copies of the prosecution papers were furnished to the accused as contemplated u/Sec.207 of Cr.P.C. Charge was framed for the said offences, which was read over and explained to accused. Accused had denied the charge levelled against him and claimed to be tried.
4 CC NO.32444/2010
5. To bring home the guilt of the accused, the prosecution had examined four witnesses as Pws.1 to 4 and got marked documents Ex.P1 to Ex.P29 and MOs.1 to 4 and closed its side. Thereafter, the statement of the accused u/Sec.313 of Cr.P.C. was recorded. On behalf of the accused no witness was examined and no document was marked.
6. I have heard the arguments of both sides and perused the records.
7. The following points arise for my consideration are:-
1. Whether the prosecution proves beyond all reasonable doubt that, the accused has committed the offences punishable under Section 66 of Information Technology Act 2000 and Section 465 and 469 of IPC ?
2. What Order ?
8. My findings to the above Points are as follows:-
Point No.1:- In the Negative.
Point No.2:- As per the final order:
for the following:-5 CC NO.32444/2010
REASONS Point No.1:-
9. In order to establish its case, the prosecution had examined 4 witnesses as Pws.1 to 4 and got marked Ex.P1 to Ex.P29 and MOs.1 to 4.
10. Pw.1 is the 1st informant who had lodged the computer typed written complaint as per Ex.P1 before the Deputy Superintendent of Police, Cyber Crime Police Station, CID Headquarters, Bengaluru and the same was registered in Cr.No.47/2009 under Section 66 of Information Technology Act 2000. Pw.1 had deposed about the providing IP details, employee details etc of the accused. Pw.1 had deposed his examination-in-chief on 28/05/2011. Thereafter, he did not subject himself for cross- examination in spite of issuing summons and NBWs and taking coercive steps against him. It is settled position of law that any amount of evidence tendered in examination-in-chief cannot be looked into unless same is subject to cross-examination. 6 CC NO.32444/2010
11. In support of this settled position of law, I would like to rely upon the ruling reported in AIR 9 SUPREME COURT 1141 (Gopal Saran v/s Satyanarayan) wherein the Hon'ble Supreme Court of India, held the dictum thus:-
"(A) Evidence Act (1872), Ss.137 and 138 - Party not subjecting himself to cross-examination in spite of order of Court -
It is not safe to rely on examination-in-chief".
Hence, the evidence of Pw.1 is of no value for the case of the prosecution.
12. Pw.2 was working as Senior Reporter for Mid Day Infomedia Limited. He had deposed about receiving the two false SMS alerts. One is bomb blast in Majestic killing 10 people and the other message is Swine Flue kills 7 in Bengaluru city.
13. Pw.3 was working as Senior Editor at Mid Day Infomedia Limited had deposed that during the investigation he came to know that one of their ex- 7 CC NO.32444/2010 employee by name Fairoz who is the accused of this case has formed these messages.
14. Pw.4 who was working as DYSP, Cyber Crime, COD who is the Investigating Officer of this case had deposed about the role played by her during the investigation.
It is elicited in the cross-examination of Pw.4 that "L.¦. CqÉæ¸ï C§Äݯï J. J. ºÉ¸Àj£À°è EvÀÄÛ. C§Äݯï J. J. CªÀgÀ ªÉÄÃ¯É AiÀiÁªÀÅzÉà zÀÆgÀÄ EgÀĪÀÅ¢®è".
"L.¦. CqÉæ¸ï J. J. C§Ä¯ï ºÉ¸Àj£À°è EzÀÝgÀÆ £Á£ÀÄ DgÉÆæAiÀÄ ªÉÄÃ¯É PÉøÀ£ÀÄß KPÉ §ÄPï ªÀiÁrzÉ JAzÀgÉ ¸ÀzÀj «¼Á¸Àz° À è DgÉÆævÀ£ÀÄ ®¨Àså«zÀÄÝ C§Äݯï J. J. CªÀjUÉ ¸ÀA§AzÀs¥ÀlÖ L.¦. CqÉæ¸ï EgÀĪÀ PÀA¥ÀÇålgï ¹¸ÖA C£ÀÄß DgÉÆæ §¼À¹zÀ PÁgÀt DgÉÆæ ªÉÄÃ¯É PÉÃ¸ï ªÀiÁrgÀÄvÉÛãÉ".
"¤¦-21 ªÀĺÀdgÀ£ÀÄß C§Äݯï J. J. DPÀÄå¥ÉAmï DVzÀÝ ªÀÄ£ÉAiÀÄ°è ªÀiÁrzÉÝêÉ. C§Äݯï J. J. CªÀgÀ PÀA¥ÀÇålgï C£ÀÄß £Á£ÀÄ CªÀiÁ£ÀvÀÄÛ¥Àr¹PÉÆArgÀĪÀÅ¢®è".
"L. ¦. «¼Á¸ÀªÀ£ÀÄß £À£ÀUÉ PÀ£ÁðlPÀ ¸ÀPÁðgÀzÀ PÉÆÃ-Drð£ÉÃlgï, ©J¸ïJ£ïJ¯ï£À «f¯É£ïì D¦üøÀgï gÀÀªÀgÀÄ ¤ÃrgÀÄvÁÛgÉ. D jÃwAiÀÄ L. ¦. «¼Á¸ÀªÀ£ÀÄß ¤ÃrzÀ ©J¸ïJ£ïJ¯ï£À «f¯É£ïì D¦üøÀgï F PÉù£À ¸ÁQëzÁgÁVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj".
"£Á£ÀÄ «ÄqïqÉà ZÀAzÁzÁgÀgÀ£ÀÄß «ZÁgÀuÉ ªÀiÁrgÀĪÀÅ¢®è". 8 CC NO.32444/2010
"DgÉÆæ¬ÄAzÀ CªÀiÁ£ÀvÀÄÛ¥r À ¹PÉÆAqÀ JAM-1 ªÀÄvÀÄÛ 2 gÀ ªÉƨÉʯïUÀ¼À°è F ªÉĸÉÃeïUÀ¼ÀÄ EzÉAiÉÆà E®èªÉÇà JAzÀÄ £Á£ÀÄ ZÉPï ªÀiÁrgÀĪÀÅ¢®è. C§Äݯï J. J. CªÀgÀ PÀA¥ÀÇålgï¤AzÀ D ªÉĸÉÃeïUÀ¼ÀÄ ºÉÆÃVzÉAiÉÆà JA§ §UÉÎ D PÀA¥ÀÇålgï C£ÀÄß £Á£ÀÄ ZÉPï ªÀiÁrgÀĪÀÅ¢®è. £Á£ÀÄ ºÁqïð r¸ïÌ C£ÀÄß ªÀiÁvÀæ jªÀiÆªï ªÀiÁrgÀÄvÉÛã"É.
"¤¦-27 gÀ°è £À£UÀ É lÄævï ¯Áå¨ï, ºÉÊzÀgÁ¨Ázï£ÀªÀgÀÄ ºÁqïðr¸ïÌ£° À è AiÀiÁªÀÅzÉà ºÉÃmÉæqï J¸ïJAJ¸ï EgÀĪÀÅ¢®è JAzÀÄ ºÉýgÀÄvÁÛgÉ JAzÀgÉ ¸Àj".
"¤¦-15 gÀ°è PÉÆ£ÉAiÀÄ PÁ®A£À°è AiÀÄƸÀgï E£ï¥sÁªÉÄðõÀ£ï PÁ®A£À°è AiÀÄƸÀgï Lr AiÀÄÄ C§Äݯï J. J. CªÀgÀ ºÉ¸jÀ £À°è EzÉ JAzÀÄ ºÉýgÀÄvÁÛgÉ JAzÀgÉ ¸Àj".
"DgÉÆæAiÀÄ «gÀÄzÀÞ DgÉÆÃ¥À CAzÀgÉ ºÉÃmÉæÃqï ªÉĸÉÃeïUÀ¼£À ÀÄß PÀ¼ÀÄ»¸ÀĪÀÅzÀÄ DVgÀÄvÀz Û É JAzÀgÉ ¸Àj".
"¤¦-4 ¦æAmïOmï C£ÀÄß vÉUÉ¢gÀĪÀ EªÀiÁæ£ï U˺Àgï CªÀgÀ ªÉƨÉʯï C£ÀÄß £Á£ÀÄ CªÀiÁ£ÀvÀÄÛ¥Àr¹PÉÆArgÀĪÀÅ¢®è ªÀÄvÀÄÛ ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è".
15. The question that arises for consideration is whether the evidence on record is sufficient to bring home the guilt of the accused. The case of the prosecution suffers from inherent infirmities.
16. The case of the prosecution is that the accused who was ex-employee of Mid Day Infomedia Limited, Bengaluru was accustomed with the 9 CC NO.32444/2010 password of the said company during his tenure in office and he was forced to resign due to recession. Due to vengeance, accused had created and sent hatred messages to the public through SMS in order to create public panic. In order to establish its case the prosecution must prove that hatred messages were created and sent by the accused with ill-motive. No material is produced by the prosecution nor any subscriber is examined to establish alleged public panic. Admittedly as per Ex.P15 Confidential Report issued by BSNL the IP No.117.199.5.94 is traced to Abdul Nizar A father-in-law of accused and he should have been suspected. The prosecution which had made Abdul Nizar A as witness (Cw.6) has not examined him. Further the computer from which accused is said to have sent hatred messages by using hard disk, has not been seized by the prosecution. The Investigating Officer ought to have seized the computer belonging to Cw.6 Abdul Nizar A. 10 CC NO.32444/2010
17. The prosecution relies upon hard disk to establish its case against the accused. The documents are in the name of Abdul Nizar A and not accused, and the said fact is confirmed by communication as per Ex.P15. It is not known whether hard disk belongs to Abdul Nizar A. Further the prosecution relies upon Ex.P27, the Report of Truth Lab to prove the guilt of the accused. The prosecution has not examined Cw.7, the author of Ex.P27, to prove analysis done and opinion report to prove the guilt of the accused. Further as per Ex.P27, no such SMS was sent from hard disk. In the report Ex.P27, it is stated that "The digital evidence storage media marked Q1 does not contain any hatred documents and SMSs. The said report is the only reliable material to hold the accused guilty. In the absence of the expert evidence of Truth Lab pointing out the guilt of the accused, accused cannot be said to be guilty of any offences.
11 CC NO.32444/2010
18. The attesting witnesses Cws.4, 5 and 6 to the Seizure Mahazar drawn on 06/12/2009 under which computer hard disk, 2 mobile phones and BSNL phone bill of the landline number have been seized have not been examined by the prosecution. In the absence of evidence of panch witnesses, the Seizure Mahazar cannot be said to be proved. No eye witnesses are examined by the prosecution. The alleged ill-motive of the accused is not proved.
19. There is no material placed before the Court to show that accused had sent the alleged hatred SMS. Whether the hatred SMS sent by hacking made by accused is not established by the prosecution. The link connecting the accused with the alleged crime is missing. Whatever may be the evidence on record, in the absence of the connecting link pointing out as to who had committed the incriminating acts or commission or omission, it is impossible to pass an order of conviction. 12 CC NO.32444/2010
20. In order to sustain a conviction u/Sec.465 and 469 of IPC the prosecution has to be prove that accused by sending the messages created false electronic records. The question of forgery does not arise on perusal of the evidence on record. Similarly the prosecution has to prove that accused without permission of the owner or any other person in charge of a computer, computer system or computer network violated any of the conditions mentioned in Clause (a) to (j) of Section 43 to sustain a charge under Section 66 of Information Technology Act. Under what category of Clause (a) to (j) of Section 43 of Information Technology Act accused had committed the offences is not mentioned by the prosecution. There is no iota of evidence to prove the ingredients of the alleged offences. Pws.1 to 3 who are employees of Mid Day Infomedia Limited are interested witnesses. In view of the inherent weakness, not much of discussion is necessary to dispose off this case. The evidence 13 CC NO.32444/2010 on record is insufficient to prove the guilt of the accused. The prosecution has failed to prove that the accused had committed the alleged offences. Accordingly, Point No.1 is answered in the Negative.
21. Point No.2:-
In the result, I proceed to pass the following:
O R D E R Acting U/s.248(1) Cr.P.C. I hold that, accused is not found guilty of having committed the offences punishable under Section 66 of Information Technology Act 2000 and Sections 465 and 469 of IPC.
Accused is hereby acquitted of the offences alleged against him and he is set at liberty forthwith.
The bail bond executed by the accused and his surety stands cancelled.14 CC NO.32444/2010
Since no claim is made in respect of Seagate SATA hard disk, BSNL Date One Modem, one Black colour Mobile phone and one black colour Classic Mobile phone item Nos.1 to 4 under PF No.42/2009, the same are ordered to be confiscated to State after appeal period is over.
Bharat Sanchar Nigam Limited phone bill for landline item No.5 under PF No.42/2009, is ordered to be destroyed after appeal period is over. (Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open court on this the 8th day of April 2015).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses on behalf of prosecution:
PW.1 Susheelan
Pw.2 Imran Govhar
Pw.3 S.R.Ramakrishna
Pw.4 Savitha
15 CC NO.32444/2010
List of documents on behalf of prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of Pw.1
Ex.P2 IP addresses
Ex.P3 List of the staff
Ex.P3(a) Signatures of Pw.1
Ex.P4 Copy of the SMS in 2 sheets
Ex.P5 Letter contract of agreement
Ex.P6 Copy of the contract between
Accused v/s firm
Ex.P7 Resignation letter by accused
Ex.P8 Details of password sending SMS
Ex.P9 False messages
Ex.P10 Emails
Ex.P11 SMS sheet copy
Ex.P12 IP address details
Ex.P13 Letter to Manager Mid Day Infomedia
Limited
Ex.P14 Letter to BSNL office
Ex.P15 Reply to Ex.P14
Ex.P16 Letter to Mid Day Infomedia Ltd.,
Ex.P16(a) Signature of Pw.4
Ex.P17 Reply to Ex.P16
Ex.P18 Ex-employee appointment document
Ex.P19 Relieving letter of accused
Ex.P20 Letter to Head Administration
Ex.P20(a) Signature of Pw.4
Ex.P21 Seizure Mahazar
Ex.P21(a) Signature of Pw.4
Ex.P22 BSNL phone bills
Ex.P23 Receipt
Ex.P23(a) Signature of Pw.4
Ex.P24 Letter to Truth Lab
Ex.P25 Letter regarding address check
of complainant
Ex.P26 Truth Lab (covering letter)
Ex.P26(a) Signature of Pw.4
Ex.P27 Report from Truth Lab
16 CC NO.32444/2010
Ex.P28 Letter from Pw.4 to Mid Day Infomedia
Limited.
Ex.P28(a) signature of Pw.4
Ex.P29 Reply to Ex.P28 from Mid Day Infomedia
Limited.
Material Objects Produced:-
MOs.1&2 Mobile phones
MO.3 Modem
MO.4 Hard disk
Witnesses examined on behalf of the defence,
documents marked:- NIL.
I Addl.CMM, Bangalore.
17 CC NO.32444/2010
(Judgment pronounced in the Open Court, vide separate order) O R D E R Acting U/s.248(1) Cr.P.C. I hold that, accused is not found guilty of having committed the offences punishable under Section 66 of Information Technology Act 2000 and Sections 465 and 469 of IPC.
Accused is hereby acquitted of the offences alleged against him and he is set at liberty forthwith.
The bail bond executed by the accused and his surety stands cancelled.
Since no claim is made in respect of Seagate SATA hard disk, BSNL Date One Modem, one Black colour Mobile phone and one black colour Classic Mobile phone item Nos.1 to 4 under PF No.42/2009, the same is ordered to be confiscated to State after appeal period is over.
Bharat Sanchar Nigam Limited phone bill for landline item No.5 under PF No.42/2009, the same is ordered to be destroyed after appeal period is over.
I Addl.CMM, Bangalore.18 CC NO.32444/2010
19 CC NO.32444/2010