Bangalore District Court
State By Koramangala Ps vs Had Denied The Charge Levelled Against ... on 12 May, 2015
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 12th day of May 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.24488/2012
Date of Offence : 13/02/2012
Name of complainant : State by Koramangala PS
Name of Accused : K.A.Rajesh,
S/o.K.Ramakrishnan,
40 Yrs., Golden Homes,
R/No.A.S-12, Attibele,
Bengaluru.
Offence complained : U/s.66,66(A) of IT Act 2000
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 12/05/2015.
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JUDGMENT
2 CC NO.24488/2012
1. The Superintendent of Police, Koramangala Police Station, Bangalore has filed the charge sheet against the accused alleging that, he had committed the offences punishable under Sections 66, 66(A) of Information Technology Act 2000.
2. The case of the prosecution in brief is that on 13/02/2012 when complainant in website WWW.CONSUMERCOMPLAINTS.IN saw communication that Golden Gate Properties and Companies are not providing sites in time and there are no proper facilities in the site and the same was published in order to tarnish the reputation of the said Company and complainant was abused as "ass hole malayali" and as a result Cw.1's company's name was not only harmed but also caused loss. During investigation it is revealed that accused through his phone No.080-23549381 in his website had published the said communication. Hence, the accusation.
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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 under Section 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.
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.P5 and closed its side. Thereafter, the statement of the accused under Section 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 4 CC NO.24488/2012 reasonable doubt that, the accused has committed the offences punishable under Sections 66, 66(A) of Information Technology Act 2000 ?
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:-
REASONS Point No.1:-
9. In order to establish its case, the prosecution had in all examined 4 witnesses as Pws.1 to 4 and got marked Ex.P1 to Ex.P5.
10. Pw.1 is the 1st informant who had lodged the computer typed complaint as per Ex.P1 before the PSI of Koramangala Police Station, Bengaluru alleging that through website WWW.CONSUMERCOMPLAINTS.IN he saw some postings employing abusive, defamatory and derogatory words with an intent to harm the reputation of the Golden 5 CC NO.24488/2012 Gate Property Company and its Directors. The said complaint was registered on 23/02/2012 in Cr.No.94/2012 under Sections 66, 66(A) of Information Technology Act 2000 against one Abhimanyu Singh by Koramangala Police Station. Along with Ex.P1 Pw.1 had submitted web posting which was marked as Ex.P2 and the relevant portion containing the alleged derogatory and defamatory portion was marked as Ex.P2(a). Pw.1 had deposed that the Investigating Officer had visited the spot and drawn the Spot Pamchanama as Ex.P2 in the presence of panchas.
It is elicited in the cross-examination of Pw.1 that "F zÀÆgÀ£ÀÄß £Á£ÀÄ C©üªÀÄ£ÀÄå¹AUï C£ÀÄߪÀªÀgÀ «gÀÄzÀÞ PÉÆnÖgÀÄvÉÛãÉ. £Á£ÀÄ DgÉÆæ gÁeÉÃ±ï «gÀÄzÀÞ AiÀiÁªÀÅzÉà zÀÆgÀ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è. ªÉ¨ï¸ÉÊmï www.consumercomplaints.in DgÉÆæ gÁeÉñï EªÀjUÉ ¸ÉÃjzÁÝVgÀĪÀÅ¢®è JAzÀgÉ ¸Àj. £Á£ÀÄ £À£Àß zÀÆj£À°è ºÉýgÀĪÀ ¢£ÁAPÀ 13-2-2012 gÀAzÀÄ ªÉ¨ï¸ÉÊmï£À°ègÀĪÀ PÀAmÉAmïì ÀÝ è JAzÀgÉ ¸Àj".
DgÉÆæ gÁeÉñï CªÀjUÉ ¸ÉÃjgÀvÀPÀÌz® "£Á£ÀÄ ¢£ÁAPÀ 23-2-2012 gÀ zÀÆj£À°è ºÉýzÀAvÉ DgÉÆæ gÁeÉñï AiÀiÁªÀÅzÉà C¥ÀgÁzÀsªÀ£ÀÄß ªÀiÁrgÀĪÀÅ¢®è JAzÀgÉ ¸Àj".
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11. Pw.2 is the attesting witness to the Spot Panchanama as per Ex.P2 drawn by the Investigating Officer as per Ex.P3. According to him, the Investigating Officer had drawn Spot Mahazar as per Ex.P3 in the 3rd floor of Golden Gate Properties Office.
12. Pw.3 who is the ASI of Koramangala Police Station had deposed that as per instructions of PSI, he along with Cw.5 had arrested the accused and produced him before PSI and submitted report as per Ex.P4.
13. Pw.4 who was working as ASI, Koramangala Police Station had deposed about the role played by him during the investigation. Pw.4 had stated that on 23/02/2012 when he was in Police Station, Pw.1 had lodged the complaint as per Ex.P1 and the same was registered in Cr.No.94/2012. Pw.4 had further deposed that on the next day in the presence of panchas, he had drawn the Spot Mahazar as per Ex.P3. Further investigation of the case was handed over to Cw.7.
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14. The question that arises for consideration is whether the evidence on record is sufficient to bring home the guilt of the accused.
15. Though the prosecution was successful in detecting the cyber crime by apprehending the accused, the case of the prosecution suffers from inherent infirmities. The abusive words and language said to have been used by the accused for abusing Pw.1 "ass hole malayali" does not find a place either in the complaint or in the evidence of Pw.1.
16. Admittedly Pw.1 had lodged the complaint against Abhimanyu Singh and not accused Rajesh. Nowhere it is alleged in the complaint that accused Rajesh used offensive and derogatory statement against Golden Gate Property Limited or its Directors. Pw.1 in the cross-examination clearly admitted that there is no complaint against the accused. No document is produced by the prosecution to show that Mobile No.23549381 belongs to the accused. There is no proof that accused 8 CC NO.24488/2012 through Mobile No.23549381 had sent communication in a website WWW.CONSUMERCOMPLAINTS.IN and posted several derogatory and defamatory statements against the Directors of M/s.Golden Gate Properties Limited including the complainant. Nobody had identified the accused before the Court was the person who had committed the alleged offences. The link connecting the accused with the alleged crime is missing. Whatever may be the evidence on record in the absence of connecting link pointing out as to who had committed the incriminating acts of commission or omission, it is not possible to pass an order conviction.
17. No explanation is forthcoming as to why in the FIR the name of accused is shown as Abhimanyu. Pw.1 had categorically stated that accused had not committed the alleged offences. No material is placed by the prosecution to establish that the accused who had been charge sheeted is the very same person who had committed the alleged offences. 9 CC NO.24488/2012
18. In order to sustain a conviction under Section 66 of Information Technology Act 2000 the prosecution has to prove that the 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 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. Section 66 of Information Technology Act 2000 is only a penal clause. There is no derogatory or defamatory words is found in any of the clause of (a) to (j) of Section 43 of Information Technology Act. There is no iota of evidence to prove the ingredients of Section 43 of Information Technology Act.
19. The Investigating Officer has not been examined by the prosecution. The non-examination of Investigating Officer is fatal to the case of the prosecution. The learned Counsel for accused 10 CC NO.24488/2012 argued that accused being Software Engineer in reputed Company had been falsely implicated in this case and had been unnecessarily dragged into Court.
20. The Hon'ble Supreme Court of India in WP(Crl) No.167/2012 had struck down Section 66(A) of Information Technology Act as unconstitutional.
21. In view of the above inherent weakness, not much of discussion is necessary to dispose off this case. The evidence on record is insufficient to prove the guilt of the accused. Accordingly, Point No.1 is answered in the Negative.
22. 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 Sections 66, 66(A) of Information Technology Act 2000. 11 CC NO.24488/2012
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. (Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open court on this the 12th day of May 2015).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses on behalf of prosecution:
PW.1 Krishnan Pw.2 Vijay Pw.3 Madhubabu Pw.4 Puttalingaiah
List of documents on behalf of prosecution:
Ex.P1 Complaint
Ex.P1(a) Signature of Pw.1
Ex.P1(b) Signature of Pw.4
Ex.P2 Web pages from Net
Ex.P2(a) 3rd page of Ex.P2
Ex.P3 Spot Mahazar
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Ex.P3(a) Signature of Pw.1
Ex.P3(b) Signature of Pw.2
Ex.P3(c) Signature of Pw.4
Ex.P4 Report
Ex.P4(a) Report Signature
Ex.P5 FIR
Ex.P5(a) Signature of Pw.4
Material Objects Produced:- NIL Witnesses examined on behalf of the defence, documents marked:- NIL.
I Addl.CMM, Bangalore.13 CC NO.24488/2012
(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 Sections 66, 66(A) of Information Technology Act 2000.
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.
I Addl.CMM, Bangalore.14 CC NO.24488/2012
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