Bangalore District Court
Rohith Sharma vs Tinack I Guillaume Alias Willams on 30 November, 2024
KABC030734362019
Presented on : 09.10.2019
Registered on : 09.10.2019
Decided on : 30.11.2024
Duration : 05y/01m/21days
IN THE COURT OF XLI ADDL. CHIEF JUDICIAL
MAGISTRATE, AT : BENGALURU
PRESIDED OVER BY TATTANDA DAMAYANTI SOMAYYA
B.A.,LL.B.,
XLI Addl. Chief Judicial Magistrate
Bengaluru
Dated on this 30th day of November 2024
C.C.No.23752/2019
COMPLAINANT : The State by
Cubbon Park Police Station
-V/s-
ACCUSED : 1. Tinack I Guillaume @ Williams
S/o. Tinack, Aged 42 years,
R/at. Goula Town, PK 14 street,
Bassa Pierre Borleau, Cameroonian.
Date of Commission of 19.08.2019
offence
Date of report 19.08.2019
Date of arrest 20.08.2019
Name of the complainant Sri.Rohith Sharma
Date of commencement of 21.09.2022
recording Evidence
Date of closing evidence 20.12.2022
Offences complained of U/Sec.66B and 66C of IT Act
2 C.C.No.23752/2019
and Sec.420 of IPC.
Opinion of the Judge As per final orders
State Represented by Senior Asst.Public Prosecutor
Accused Represented by Sri.M.Girish-Advocate.
JUDGMENT
[Delivered on 30.11.2024] The Police Inspector of Cubbon park police station has filed charge sheet against the accused for the offences punishable U/Sec.66B and 66C of IT Act and Sec.420 of IPC.
2. Brief facts of prosecution case is as follows:
The accused No.1 and 2 are the Cameroonian citizens, who came to India on tourist visa and resided at Ramamurthy Nagar, Bengaluru. They sent whatsapp messages to CW.1 on 19.08.2019 at 8p.m., to 10pm., and falsely assured him to give fake currency notes of Rs.2,000/- which were created by using chemical if, he pays Rs.1,00,000/- to them. They fraudulently induced him to pay Rs.10,000/-. But they did not give any amount to the complainant. They used mobile phone for sending whatsapp messages with fake identity and thereby induced CW.1 to pay Rs.10,000/-. On the basis of complaint given by CW.1, the Cubbon 3 C.C.No.23752/2019 Park police have registered this case against the accused in Cr.No.157/2019.
3. On 20.08.2019, the accused was arrested and produced before the court. In view of the bail granted by the Hon'ble Sessions court U/Sec.439 of Cr.P.C., in Crl. Misc. No.10524/2019, he was enlarged on bail. Subsequently, he did not appear before the court regularly and hence this court issued repeated non bailable warrants against him to secure his presence. On 18.10.2024, the police executed the warrant and produced him before the court. This court remanded him to judicial custody. Hence, the earlier bail bonds executed by accused No.1 stands forfeited to the Government. Now the accused No.1 is in judicial custody.
4. After the investigation, the IO filed charge sheet against the accused. This Court has taken cognizance of the offences punishable U/Secc.66B and 66C of IT Act and Sec.420 of IPC. This Court complied with Sec.207 of Cr.P.C., and furnished charge sheet copy to the accused No.1.
4 C.C.No.23752/2019
5. Though the name of the accused No.2 is mentioned in the charge sheet, his other particulars such as father's name, age, avocation and residential address/office address is not mentioned. There is an endorsement in the charge sheet stating that a separate charge sheet will be filed against him after securing his presence. Inspite of it, the then 1st ACMM, Bengaluru took cognizance of the offences against both the accused. As per order dated 15.02.2021, the court ordered to split up case against accused No.2. In the absence of his entire particulars such as his father's name, age, avocation and residential address, the police cannot execute the process issued by the court. Hence, registration of split up case amounts to abuse of process of law. Hence, this case is proceeded against accused No.1 only.
6. This Court heard both the parties. As there were no grounds to discharge the accused No.1, this Court framed charges for the offences punishable U/Sec.66B, 66C of IT Act and Sec.420 of IPC. The accused No.1 did not plead guilty. He claimed to be tried. 5 C.C.No.23752/2019
7. In order to prove its case, the prosecution got examined 2 witnesses as PW.1 and 2 and got marked Ex.P.1 to 8 documents and MO.1. After the completion of prosecution side evidence, the statement of accused No.1 was recorded U/Sec.313 of Cr.P.C., wherein he denied the incriminating evidence led against him. He did not choose to lead his defense evidence.
8. I have heard the arguments of Senior APP and Sri. MG, Advocate.
9. On the basis of allegations made against the accused, the following points arise for my consideration:
1. Whether the prosecution proves beyond all reasonable doubt that, the accused No.1 and 2 being the citizens of Cameroon by residing at Ramamurthy Nagar, Bengaluru sent whatsapp messages to CW.1 on 19.08.2019 at 8p.m., to 10pm., and falsely assured him to give fake currency notes of Rs.2,000/- which were created by using chemical and fraudulently induced him to pay Rs.10,000/- and without returning the 6 C.C.No.23752/2019 money, they have cheated him and thereby the accused No.1 has committed the offence punishable 420 of IPC?
2. Whether the prosecution proves beyond all reasonable doubt that, on the aforesaid date time and place, they used mobile phone for sending whatsapp messages with fake identity and thereby induced CW.1 to pay Rs.10,000/- and thereby the accused No.1 has committed the offence punishable U/Sec.66B & 66C of I.T.Act?
3. What order?
10. My answers to the above points are as under:
Point No.1 : In Negative
Point No.2 : In Negative
Point No.3 : As per final orders for the following:
REASONS
Point No.1& 2 : As these two points are interrelated, I take both the points together for common discussion to avoid repetition.
11. The burden is casted on the prosecution to prove that, the accused No.1 and 2 being the citizens of Cameroon by residing at Ramamurthy Nagar, Bengaluru sent whatsapp messages to CW.1 7 C.C.No.23752/2019 on 19.08.2019 at 8p.m., to 10pm., and falsely assured him to give fake currency notes of Rs.2,000/- which were created by using chemical and they fraudulently induced him to pay Rs.10,000/- and without returning the money they have cheated him and they used mobile phones for sending whatsapp messages with fake identity.
12. In order to prove its case, the prosecution got examined the police personnel, who arrested the accused No.1/CW.7 as PW.1 and the investigation officer/CW.15 as PW.2 and got marked report given by PW.1 as Ex.P.1, spot mahazar as Ex.P.2, seizure mahazar as Ex.P.3, PF No.92/2019 as Ex.P.4, voluntary statement of accused No.1 as Ex.P.5, letter of 29th Church's Inn hotel as Ex.P.6, copy of passport of accused No.1 as Ex.P.7, xerox copy of receipt of hotel as Ex.P.8 and cash of Rs.4,000/- as MO.1.
13. CW.7/PW.1 - Sachidanand.P., in his evidence has stated that, while he was working as Head constable at Cubbon Park police station on 19.08.2019 the CW.15 deputed him, CW.8 and 9 to trace out the accused of this case. By collecting credible information 8 C.C.No.23752/2019 they went to room No.109 of Church Inn Hotel of Church street, Bengaluru, where they caught hold of Tinack I Guillaume @ Williams, the accused No.1. After confirming his identity, they arrested him at 11 p.m., and produced him before CW.15 at 11.25 p.m. Accordingly, he gave Ex.P.1 report to CW.15. He has identified the accused No.1.
14. CW.2/PW.2- B. Iyyanna Reddy in his evidence has stated that, while he was working as Police Inspector at Cubbon Park police station, on 19.08.2019 the CW.7 and 8 produced accused No.1 and accordingly, the CW.7 gave Ex.P.1 report. On 20.08.2019, he visited the scene of occurrence and conducted Ex.P.2 spot mahazar in between 10.30 a.m., to 11.20 a.m., in the presence of CW.1 to 3. On the same day, he produced the accused No.1 before the court and took him to police custody. On 21.08.2019, the accused No.1 took them to his house, which is situated at Ramamurthy Nagar, where he seized 2 Indian currency notes of the face value of Rs.2,000/-, by drawing Ex.P.3 mahazar in between 11a.m., to 11.15 a.m., in the presence of CW.4 9 C.C.No.23752/2019 and 5. Thereafter, he recorded the statements of CW.10 to 13 and recorded Ex.P.5 voluntary statement of accused No.1. Ex.P.6 is the letter issued by Church Inn hotel. Ex.P.7 is the copy of the passport of accused No.1 and the receipt issued by the hotel to CW.1 and 10 is marked as Ex.P.8. Subsequently, he produced the accused No.1 before the court. By completing the investigation, he filed charge sheet against the accused. The currency notes sized from the house of accused No.1 is marked as MO.1. He has identified accused No.1.
15. On the basis of written information given by CW.1 on 19.08.2019 at 9.15 p.m., the Cubbon park police have registered this case, investigated the matter and filed charge sheet against the accused. In the written information/complaint, the complainant has mentioned the name of the accused No.1 and 2 and narrated the incidents in detail as to how they sent Whatsapp messages to his phone number from +855972434920 and 8095230986 numbers. He has also mentioned room number of the hotel, where the accused met him. Further, he described how 10 C.C.No.23752/2019 the accused created currency notes by using white sheets, UV light and laptop. Moreover, the complainant stated that, the accused used extraction powder and activation powder for creating currency notes. As per their demand, he paid Rs.10,000/- as advance, though they asked him to pay Rs.1,00,000/-. He has explained the incident in detail as to how they cheated him.
16. In order to ascertain the correctness of the allegations made in the written information/complaint, the court had issued repeated summons, non bailable warrants and proclamations against CW.1 to 6, 10 to 14. Inspite of it, the prosecution has not secured their presence. By noting their absence and age of the case, this court dropped them from examination. Likewise, the prosecution has given up CW.8 and 9.
17. In the present case, the complainant has not appeared before the court to say how, he was cheated by Cameroonian citizens, the accused and the reason for him to approach Cubbon park police station. In the present case, the PW.1 stated that he along with CW.8 and 9 arrested accused No.1 from room No.109 11 C.C.No.23752/2019 Church Inn hotel, Church street, Bengaluru. But his version is not supported by the oral evidence of any independent witnesses. The PW.2 deposed regarding registration of the case, drawing of mahazar, recording the statements of the witnesses, seizing of MO.1- two Indian currency notes etc. However his version is also not supported by the oral evidence of any independent witnesses.
18. In the present case, no person appeared before the Court to say that, they have seen the accused meeting CW.1 at Church Inn hotel. Though the CW.1 has mentioned the articles, which were used by the accused No.1 and 2 for creating fake Indian currency notes in his complaint, those articles are not seized by PW.2.
19. As per Ex.P.3 seizure mahazar, the PW.2 has seized MO.1/two Indian currency notes of the face value of Rs.2,000/- from the house of accused No.1, which is situated at No.56, Ashirwad house, 2nd cross, Silver cloud Layout, Kalkere, Ramamurthy Nagar, the CW.4 and 5 being the signatories to Ex.P.3, the pancha witnesses have not appeared before the court to substantiate the version of PW.2 and the contents of Ex.P.3. 12 C.C.No.23752/2019
20. In the present case, the prosecution has not produced any convincing evidence before the court to show that, MO.1 - 2 Indian currency notes were seized from the house of accused No.1 by drawing Ex.P.3 mahazar. The signatories to Ex.P.3 have not appeared before the court to say that they seen the police seizing MO.1 from the house of accused No.1.
21. The PW.2 being the IO did not collect the mobile phones, sim cards, laptops, activation powder or extraction powder from the accused, so as to show that, those materials/instruments were used by the accused to send Whatsapp messages to CW.1 and induced him to pay Rs.10,000/-. The IO did not explain, what happened to Rs.10,000/- which was taken by the accused from CW.1 and why it was not seized and produced before the Court.
22. In the present case, the IO did not collect the Call Details Report and message details of +855972434920 and 8095230986 numbers and the phone number of CW.1 so as to show that, the accused sent Whatsapp messages to CW.1. The IO did not 13 C.C.No.23752/2019 explain, who is the service provider of the mobile phones of the accused, which is referred in the complaint given by CW.1.
23. The PW.1 and 2 are the police witnesses, their version is not supported by the oral evidence of any independent witnesses. In the absence of oral evidence of complainant and pancha witnesses, the version of PW.1 and 2 appears to be baseless. There is no convincing evidence on record to hold that, the accused sent whatsapp messages to CW.1 and induced him to pay Rs.10,000/- by assuring him to give fake currency notes of the face value of Rs.2000/-.
24. Thus, the prosecution has failed to prove that, the accused No.1 and 2 being the citizens of Cameroon by residing at Ramamurthy Nagar, Bengaluru sent whatsapp messages to CW.1 on 19.08.2019 at 8p.m., to 10pm., and falsely assured him to give fake currency notes of Rs.2,000/- which were created by using chemical and they fraudulently induced him to pay Rs.10,000/- and without returning the money they have cheated him and they used mobile phone for sending whatsapp messages with fake 14 C.C.No.23752/2019 identity. In such circumstances, I answer point No.1 and 2 in Negative.
Point No.3: For the aforesaid reasons, I proceed to pass the following:
ORDER By exercising the powers conferred U/Sec.248[1] of Cr.P.C., the accused No.1 is acquitted from the charges of Sec.66B, 66C of I.T. Act and Sec. 420 of IPC.
The property seized under PF No.92/2019 i.e., 2 Indian currency notes of face value of Rs.2,000/- shall be kept intact till the Cubbon Park police secure the presence of accused No.2 and file separate charge sheet against him.
Office to intimate the jail authorities to release accused No.1, immediately from this TATTANDA Digitally TATTANDA signed by case. DAMAYANTI Date: 2024.11.30 DAMAYANTI SOMAIAH SOMAIAH 17:41:08 +0530 30.11.2024 [TATTANDA DAMAYANTI SOMAYYA] XLI A.C.J.M., BENGALURU 15 C.C.No.23752/2019 ANNEXURE LIST OF WITNESSES EXAMINED FOR THE PROSECUTION:
PW.1 : Sachidanand.P PW.2 : B.Iyanna Reddy
LIST OF DOCUMENTS MARKED FOR THE PROSECUTION:
Ex.P.1 : Report given by PW.1 Ex.P.1[a] : Signature of PW.1 Ex.P.2 : Spot mahazar Ex.P.2[a] : Signature of PW.2 Ex.P.3 : Seizure mahazar Ex.P.3[a] : Signature of PW.2 Ex.P.4 : Property Form Ex.P.4[a] : Signature of PW.2 Ex.P.5 : Voluntary statement of accused. Ex.P.5[a] : Signature of PW.2 Ex.P.6 : Letter of 29th Church Inn hotel Ex.P.7 : Copy of passport copy Ex.P.8 : Receipt issued by Hotel LIST OF MO'S MARKED FOR THE PROSECUTION: MO.1 : Cash of Rs.4,000/-
LIST OF WITNESSES EXAMINED FOR THE ACCUSED :
NIL LIST OF DOCUMENTS MARKED FOR THE ACCUSED : Nil ....................................................................................
Dictated on : 29.11.2024
Transcribed on : 29.11.2024
checked on : 29.11.2024
Signed on : 30.11.2024
[TATTANDA DAMAYANTI SOMAYYA]
XLI A.C.J.M., BENGALURU
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