Delhi District Court
Chavi Anurag Goyal vs State on 24 February, 2022
IN THE COURT OF SH. SONU AGNIHOTRI
ADDL. SESSIONS JUDGE03
SAKET COURTS, NEW DELHI
Criminal Revision No. 19/2021
CNR No. DLSE010005242021
CHAVI ANURAG GOYAL
D/o Sh. Satish Chandra Gupta
R/o A52, Kalpatru Habitat, Parel,
Mumbai400012.
.... Petitioner
VERSUS
STATE
(Through Government of NCT of Delhi)
New Delhi.
.... Respondent
Date of institution : 23.01.2021
Date of reserving the order : 13.12.2021
Date of pronouncement : 24.02.2022
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JUDGMENT
1. This is criminal revision u/s 397/399 of the Code of Criminal Procedure preferred by accused/petitioner against impugned order dated 04.01.2021 passed by court of Sh. Animesh Kumar, Ld. MM06, South East, Delhi in case FIR bearing No. 83/2019, State Vs. Chavi Anurag Goyal, PS Sarai Khawja whereby order of framing of charge U/sec 72A of IT Act and Section 409 IPC was passed against accused/petitioner.
2. In the revision petition, it is stated that complainants are fatherinlaw and mother in law of petitioner. It is stated that petitioner got married to complainants' son in 2015 and somewhere in mid 2017, issues between petitioner and her husband became more severe and grave. Husband of petitioner left matrimonial home in April, 2017 and started living with complainants at Faridabad.
3. It is stated that petitioner filed complaint U/sec 12 of PWDV Act before Ld. MM, Sewree, Mumbai against husband CR 19/2021 Chavi Anurag Goyal Vs. State Page no....2 of 32 of petitioner /son of complainant and complainants wherein she inter alia sought maintenance from her husband Anurag Goyal. Mr. Anurag Goyal had been evading and contesting his liability of paying maintenance to petitioner and deliberately and nefariously diverting /transferring money from his bank accounts to his parents bank account amounting to crores of rupees. Money trail is stated to be evident from now filed Income Affidavit of son of complainants containing Income Tax Returns/Bank Statements /Credit Card statements / Demat statements of son of complainants in the divorce case filed by him against petitioner in Family Court at Saket.
4. It is stated that there are 12 court proceedings pending between petitioner and son of complainants relating to matrimonial disputes between them in courts of Delhi and Mumbai. Matrimonial home of petitioner is stated to be in Mumbai where she is residing after obtaining order from DV Court there.
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5. It is stated that during proceedings before Ld. MM at Mumbai, petitioner filed an application for production of documents wherein she mentioned Bank Account Nos. 00701009556 and 000701025441 with ICICI Bank, Sector15, Faridabad belonging to parents of her husband and five FDs bearing No. 349313000005, 349313000003, 349313000004, 166010001187 and 166010001188 with ICICI Bank, Sector15, Faridabad Branch.
6. It is stated that complainants on seeing account numbers in the application filed by petitioner before Ld. MM at Mumbai filed complaint against petitioner with PS Sarai Khwaja, Faridabad in pursuance of which, FIR No. 83/2019 U/sec 72 A of IT Act was lodged.
7. It is stated that it is alleged by complainants in their police complaint and FIR that complainants held two Bank Accounts bearing No. 00701009556 and 000701025441 with ICICI Bank, Sector15, Faridabad Branch. Complainants on CR 19/2021 Chavi Anurag Goyal Vs. State Page no....4 of 32 12.04.2017 made three FDs bearing No. 349313000005, 349313000003 and 349313000004 with ICICI Bank, Sector15, Faridabad Branch. Complainants again on 16.05.2017 got prepared two more FDs bearing No. 166010001187 and 166010001188 at the same branch. It is stated that it was further alleged that son of complainants did not live with petitioner for a single second post 06.04.2017, when son of complainants left his matrimonial home. They further alleged that they are senior citizens and the said information is confidential and the said information was leaked out by the bank which can put their lives in danger. It was further alleged that petitioner in the meanwhile filed complaint U/sec 12 of DV Act in Mumbai against complainants and their son Anurag Goyal where petitioner inter alia sought maintenance from Anurag Goyal. It was alleged that during proceedings before Ld. MM, Mumbai, petitioner filed an application for production of documents in which she mentioned the said Account Numbers, Fixed Deposit CR 19/2021 Chavi Anurag Goyal Vs. State Page no....5 of 32 Numbers and also amount of said FDRs. It was further alleged in the FIR that ICICI Bank should not have allowed it to be shared but since petitioner is working at Bank in Mumbai, she would have got access to the said accounts over one of computers of ICICI Bank at Mumbai and that she would not have got the said information as husband stopped living with her from the said date and petitioner in connivance with ICICI Bank committed Criminal Breach of Trust by banker and that petitioner Jeopardized safety and security of the said FDs /Accounts and that of complainants by assessing complainants bank account in an unauthorized and fraudulent manner and has tried to wrongfully obtain gain for herself by causing wrongful loss to complainants. Complainants have also stated that FIR be registered against petitioner and ICICI Bank. FIR also states that login details etc would be available at Mumbai office of ICICI Bank where petitioner was working. CR 19/2021 Chavi Anurag Goyal Vs. State Page no....6 of 32
8. It is stated that during proceedings before Ld. JMIC, Faridabad, petitioner and son of complainants, both moved Hon'ble Supreme Court of India for transfer of Criminal Proceedings arising out of the said FIR to Mumbai and Delhi respectively and Hon'ble Apex Court vide order dated 28.05.2020 transferred criminal case arising out of FIR No. 83/2019 pending before JMIC at Faridabad to court of competent jurisdiction, Saket Court Complex at New Delhi.
9. It is stated that after transfer of the matter, charge sheet was filed by State before Ld. MM. It is stated that when the matter was fixed for arguments on charge, counsel for complainants moved an application seeking leave of the court to plead matter on behalf of State which was declined. Thereafter, State moved an application U/sec 178 (3) Cr.P.C. before Ld. MM for production of additional documents on 06.10.2020 whereby application of petitioner for production of documents of complainants' son and complainants in DV Court at Mumbai was placed on record for the first time. It is stated that the said CR 19/2021 Chavi Anurag Goyal Vs. State Page no....7 of 32 application was allowed and thereafter State filed supplementary charge sheet wherein Section 409 IPC was added.
10. It is stated that matter was thereafter fixed for arguments on charge and after listening to respective arguments, Ld. Trial Court vide impugned order ordered for framing of charge U/sec 72 A of IT Act and Section 409 IPC against petitioner.
11. Following grounds have been taken by petitioner to challenge impugned order:
a) Because impugned order is bad in law which requires interference for correction of manifest illegality and gross miscarriage of justice.
b) Because Ld. Trial court erred in mechanically accepting case of prosecution without examining charge sheet visa vis basic ingredients of offence with which petitioner is charged with. None of the ingredients of IPC and IT Act under which charge sheet has been filed applies to petitioner so far as framing of charge is concerned. Police wrongly booked CR 19/2021 Chavi Anurag Goyal Vs. State Page no....8 of 32 petitioner under Section 72 A of IT Act and Section 409 IPC.
Everywhere in complaint /FIR, it is stated that information has been leaked by the bank (where petitioner was working ) or in connivance with the bank which clearly shows that their does not exist any lawful contract between complainants and petitioner and that the alleged act could only be done by the bank. Therefore, ingredients of Section 72A IT Act "In terms of lawful contract" is not covered in present case.
It is stated that no wrongful loss has been caused to complainants nor any wrongful gain can be attributed to petitioner. Petitioner merely submitted details of FDRs and account numbers with amounts therein of complainants to a judicial forum in order to aid Ld. Court to adjudicate issue of maintenance to be paid to petitioner by son of complainants who all this while has been evading and contesting payment of maintenance to petitioner claiming that he has no money. CR 19/2021 Chavi Anurag Goyal Vs. State Page no....9 of 32 No wrongful loss can be said to have been caused to complainants as maintenance order can only be made against the husband and not against in laws of aggrieved woman. Mere apprehension that they being senior citizens or that disclosure money lying in their accounts to a judicial forum will cause danger to them does not constitute wrongful loss in absence of any threat of the same. Admittedly, son of complainants was living with them throughout during the relevant period.
Act of disclosing FDs number and account numbers to a court of law cannot be termed as wrongful gain by any stretch of imagination. Similarly, complaint /FIR does not disclose wrongful loss suffered by complainants or wrongful gain to petitioner. Bare perusal of statement of complainant Vijay Goyal at page No. 49 of the charge sheet clearly shows that he has merely given a short hand statement without disclosing as to how complainants suffered wrongful loss at hands of petitioner.
CR 19/2021 Chavi Anurag Goyal Vs. State Page no....10 of 32 It is stated that no offence U/sec 409 IPC is made out against petitioner as there is no entrustment of property (details of FDs and Account Number) between complainants and petitioner. Complainants entrusted property (details of FDs and Account Number) with ICICI bank and petitioner is not the banker to whom complainants have entrusted their property. No where in the complaint /FIR or in the charge sheet or in statement of any witness, it is stated that petitioner is professionally assigned or entrusted with duty of operating FD section of the bank due to which she would have access to the said FDs of complainants. No where in the complaint /FIR or statements of witnesses, it is mentioned that petitioner is the banker handling accounts of complainants in her professional capacity. There has been no misappropriation or conversion or disposal of property (FDs) of complainants by petitioner.
c) Because Ld. Trial Court erred in holding that as petitioner in her professional capacity accessed account details CR 19/2021 Chavi Anurag Goyal Vs. State Page no....11 of 32 of complainants, petitioner comes within purview of "lawful contract" so far as complainants are concerned. Prosecution has wrongly relied on private contract and code of conduct between petitioner and her employer to bring petitioner within domain of "under a lawful contract" and Section 72A of IT Act and Section 409 IPC are thus not attracted against petitioner by any stretch of imagination.
d) Because Ld. Trial Court erred in failing to understand that present complaint arose out of a matrimonial dispute /civil dispute and has been given a cloak of criminality in order to defeat effort of petitioner in Domestic Violence Court where petitioner is seeking maintenance from son of complainants. Present complaint has been filed in order to harass petitioner and entangle her in a web of false cases in order to financially /mentally drain the petitioner.
It is pertinent to mention that even as per statement of IO SI Mahesh Kumar, there exist Matrimonial disputes between CR 19/2021 Chavi Anurag Goyal Vs. State Page no....12 of 32 parties and cases have been filed with respect to maintenance and Domestic Violence clearly indicating that present dispute is a civil dispute cloaked under criminal case. Secondly, charge sheet further record that based on inquiry report of one Mr. Javed Ahmad of Cyber Cell, there exists prima facie ground for lodging FIR, however, in the entire charge sheet, there exists no such inquiry report of SI Javed Ahmad nor any statement of said SI Javed Ahmad has been recorded by IO on whose report allegedly DCP gave approval for registration of FIR.
e) Because Ld. Trial Court while concluding in the observation in the impugned order mentions that petitioner by sharing details of Account Numbers of complainants without their consent at a public forum prima facie constitute wrongful loss to that person but Ld. Trial Court failed to disclose as to which act of petitioner amounted to wrongful gain for herself because Section 72 A of IT Act and Section 409 IPC both clearly and simultaneously require wrongful loss to CR 19/2021 Chavi Anurag Goyal Vs. State Page no....13 of 32 complainants and wrongful gain to petitioner but surprisingly, impugned order is silent regarding this aspect and Ld. Trial Court has failed to conclude as to how act allegedly committed by petitioner caused wrongful gain to her.
f) Because Ld. Trial Court did not have jurisdiction to try present case since complaint states that petitioner allegedly accessed the bank accounts from Mumbai meaning thereby that cause of action arose in Mumbai and therefore FIR and subsequent proceedings ought to have been initiated before courts of Mumbai and not before court of Ld. Trial Court.
12. It is prayed to call for Trial Court Record, set aside impugned order and pass any other order which this court may deem fit in facts and circumstances of present case.
13. I have heard arguments addressed by respective counsels and perused record including trial court record, judgments filed by both the parties i.e. petitioner and complainants and synopsis and documents filed by petitioner.
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14. Vide impugned order, charge has been ordered to be framed against petitioner u/s 72A of IT Act and Section 409 IPC. Let me first examine ingredients of these sections so as to determine as to whether act of petitioner / accused attract ingredients of these sections.
15. Section 72A of Information Technology Act provides as below: Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.
16. Section 409 IPC provides as below: Criminal breach of trust by public servant, or by banker, merchant or agent.--Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be CR 19/2021 Chavi Anurag Goyal Vs. State Page no....15 of 32 punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
17. Criminal Breach of Trust is defined under Section 405 IPC which provides as below: Criminal breach of trust.--Whoever, being in any manner entrusted with property, or with any dominion over property, dishonestly misappropriates or converts to his own use that property, or dishonestly uses or disposes of that property in violation of any direction of law prescribing the mode in which such trust is to be discharged, or of any legal contract, express or implied, which he has made touching the discharge of such trust, or wilfully suffers any other person so to do, commits "criminal breach of trust".
Explanation 1.--A person, being an employer of an establishment whether exempted under section 17 of the Employees' Provident Funds and Miscellaneous Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution from the wages payable to the employee for credit to a Provident Fund or Family Pension Fund established by any law for the time being in force, shall be deemed to have been entrusted with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said law, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
Explanation 2.--A person, being an employer, who deducts the employees' contribution from the wages payable to the employee for credit to the Employees' State Insurance Fund held and administered by the Employees' State Insurance Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948), shall be deemed to have been entrusted CR 19/2021 Chavi Anurag Goyal Vs. State Page no....16 of 32 with the amount of the contribution so deducted by him and if he makes default in the payment of such contribution to the said Fund in violation of the said Act, shall be deemed to have dishonestly used the amount of the said contribution in violation of a direction of law as aforesaid.
18. Petitioner filed judgment in case titled as "State Vs. Someshwar and Ors. MANU/DE/0710/2005" wherein Hon'ble High Court of Delhi held as below: "In exercising powers under Section 227 of the Code of Criminal Procedure the Court has to find whether the material placed before the Court discloses grave suspicion against the accused which has not been properly explained. The Court will be fully justified in framing a charge and proceeding that the trial; by and large if two views are equally ....... and the Judge is satisfied that the evidence produced before him while giving rise to some suspicion but no grave suspicion against the accused, he will fully justified to discharge the case and in exercising jurisdiction under Section 227 of the Code of Criminal Procedure, the Judge cannot act merely as a Post Office or a mouth piece of the prosecution but has to consider the broad probabilities of case, the total effect of the evidence and the documents produced before the Court but should not make a roaming inquiry into the pros and cons of the matter and weight the evidence as if he was conducting a trial."
19. Petitioner further filed judgment in case titled as "Dipakbhai Vs. Jagdishchandra Patel Vs. State of Gujarat and Ors. MANU/SC/0595/2019" wherein Hon'ble Supreme CR 19/2021 Chavi Anurag Goyal Vs. State Page no....17 of 32 Court of India discussed ratio in judgment titled as "Suresh Budharmal Kalani Alias Pappu Kalani Vs. State of Maharashtra MANU/SC/0608/1998" wherein it was laid down as below: "The impugned order shows that the Designated Court was fully aware of the above legal position but, surprisingly enough, it still decided to rely upon the confession on the specious ground that the prosecution was not in any way precluded from examining Dr Bansal as a witness in the trial for establishing the facts disclosed in his confession. This again was a perverse approach of the Designated Court while dealing with the question of framing charges. At that stage, the court is required to confine its attention to only those materials collected during investigation which can be legally translated into evidence and not upon further evidence (dehors those materials) that the prosecution may adduce in the trial which would commence only after the charges are framed and the accused denies the charges. The Designated Court was, therefore, not at all justified in taking into consideration the confessional statement of Dr Bansal for framing charges against Kalani."
20. Petitioner further relied upon judgment of Hon'ble Apex Court of India in case titled as "Century Spinning and Manufacturing Pvt. Ltd. Vs. State of Maharashtra AIR 1972 SC 545" wherein Hon'ble Supreme Court of India laid down following principal of law: CR 19/2021 Chavi Anurag Goyal Vs. State Page no....18 of 32 "The order framing the charges does substantially affect the person's liberty and it is not possible to countenance the view that the Court must automatically frame the charge merely because the prosecuting authorities, by relying on the documents referred to in Section 173, consider it proper to institute the case. The responsibility of framing the charges is that of the Court and it, has to judicially consider the question of doing so. Without fully adverting to the material on the record it must not blindly adopt the decision of the prosecution."
21. Petitioner filed judgment in case titled as " M/s. Aaron Softech Pvt. Ltd. and Ors. Vs. The State of Assam and Anr. Crl. Pet. 665/2018" wherein Hon'ble High Court of Assam laid down as below:-
"The two basic ingredients of the offence of criminal breach of trust u/s 406 IPC is (1) entrustment and dominion over the property and (ii) dishonest misappropriation or conversion of the entrusted property to own use of the accused. Admittedly as per the terms of the contract the petitioners were to employ developers for developing the computer programme and they admittedly employed such resources (developers) and time to time payments were made by the complainant as per contract. However, as per allegations, payments were made in excess, as less number of developers were engaged by the petitioners. Payment made against the work under the contract, cannot be construed as entrustment. If the person is entrusted with a property by another person, the person entrusted (trustee) does not have any vested interest or right over the property, inasmuch as, the right to property remains with the person, who entrusted the same. The person entrusted with the property becomes only a custodian or trustee to discharge the trust in CR 19/2021 Chavi Anurag Goyal Vs. State Page no....19 of 32 terms of the contract or in accordance with any law prescribing the mode in which the trust is to be discharged. Therefore, payment made for and against work done, though in excess, such payment cannot be construed as entrustment to constitute the offence of criminal breach of trust. In absence of entrustment there cannot be question of dishonest misappropriation or conversion of the entrusted property to own use of the trustee. That apart, admittedly the petitioners engaged developers, may be in less numbers, to carry out the work as per contract, and as such, the allegations made in the complaint also failed to disclose the dishonest misappropriation of the property entrusted. So far the offences under the provision of Information Technology Act are concerned, the complainant only expressed his apprehension that the data may be misused by the petitioners or the petitioners may destroy such data or share such data with strangers. Mere apprehension does not constitute any offence. There was no allegation in the complaint disclosing any ingredient of the offences under Sections 65/66/72(A) of the Information Technology Act. Therefore, having considered the allegations made in the complaint in the instant case, I am unable to persuade myself to hold that there was any ingredient of any criminal offence, though, there might be a breach of contract, inasmuch as, breach of contract per-se, is not an offence, unless it contains the criminal elements."
22. Petitioner further filed judgment in case titled as "G. Sagar Suri and Ors. Vs. State of UP and Ors.
MANU/SC/0045/2000" wherein Hon'ble Apex Court held as below:-
"If a matter, which is essentially of a civil nature, has been given a cloak of criminal offence merely to pressurize the accused, such criminal proceedings taking a shortcut of other CR 19/2021 Chavi Anurag Goyal Vs. State Page no....20 of 32 remedies available, should not be encouraged and before issuing process, the Court should exercise a great deal of caution while issuing process in a proceeding which are essentially of civil nature."
23. Petitioner further filed judgment in case titled as " State of Bihar Vs. Ramesh Singh 1978 SCR (1) 257" wherein Hon'ble Apex Court of India held as below:-
"The standard of test and judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of deciding the matter under section 227 or section 228 of the Code. At that stage the Court is not to 'see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end in his conviction. Strong suspicion against the accused, if the matter remains in the region of suspicion, cannot take the place of proof of his guilt at the conclusion of the trial. But at the initial stage if there is a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused. The presumption of the guilt of the accused which is to be drawn at the, initial stage is not in the sense of the law governing the trial of criminal cases in France where the accused is presumed to be guilty unless the contrary is proved. But it is only for the purpose of deciding prima facie whether the Court should proceed with the trial or not. if the evidence which the Prosecutor proposes to adduce to prove the guilt of the accused even if fully accepted before it is challenged in cross-examination or rebutted by the defence evidence, if any, cannot show that the accused committed the offence, then there will be no sufficient ground for proceeding with the trial. An exhaustive list of the circumstances to indicate as to what will lead to one conclusion or the other is CR 19/2021 Chavi Anurag Goyal Vs. State Page no....21 of 32 neither possible nor advisable."
24. There are certain other judgments filed on behalf of petitioner but the same does not appear to be relevant so far as facts and circumstances of present case are concerned, so I am not discussing ratio laid down in those judgments.
25. Complainants similarly filed judgment in case titled as "K. S. Puttaswamy Vs. Union of India & Ors.(2017) 10 SCC 1" wherein provisions of Credit Information Companies (Regulation) Act, 2005 have been discussed.
26. For attracting provisions of Credit Information Companies (Regulations) Act 2005, complaint has to be made by officer of Credit Information Company or by Reserve Bank of India which is not the case in facts and circumstances of present case where complaint has been made by private individuals.
27. Complainants further filed judgment in case titled as "Rayala M. Bhuvaneswari Vs. Nagaphanender Rayala AIR 2008 AP 98" wherein Hon'ble High Court of Andhra Pradesh discussed various facets of right to privacy.
28. Complainants relied upon judgment in case titled as "Pawan Kumar Saluja Vs. CPIO MANU/CI/0004/2021"
decided by Central Information Commission wherein provisions of Right to Information Act have been discussed.
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29. Now, I shall come to the aspect as to whether Section 72A of IT Act is attracted in facts and circumstances of present case. Section 72A of IT Act provides for punishment to a person who while providing services under terms of lawful contract has secured access to any material containing personal information about any person with intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses without consent of the person concerned or in breach of a lawful contract such material to any other person.
30. Admittedly, petitioner is daughter-in-law of complainants who was working with ICICI Bank at Mumbai in managerial capacity. As per case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank, Faridabad Branch and used these details in an application filed before Ld. MM at Sewree in a complaint filed by her under provisions of Domestic Violence Act.
31. Perusal of complaint filed by complainants on basis of which FIR No. 43/2019 PS Sarai Khawaja was lodged shows that complainants have lodged complaint against ICICI Bank as well as petitioner but that charge-sheet has not been filed by IO against ICICI Bank and has only been filed against petitioner herein. Complaints in their complaint given have alleged that CR 19/2021 Chavi Anurag Goyal Vs. State Page no....23 of 32 act of petitioner in connivance with ICICI Bank amounts to criminal breach of trust by a Banker. They further alleged that petitioner in connivance with ICICI Bank has jeopardized safety and security of property and person of complainants who are senior citizens. It has been alleged that petitioner in connivance with ICICI Bank has accessed their bank accounts in an unauthorized and fraudulent manner and petitioner in connivance with ICICI Bank has tried to make wrongful gain for herself and wrongful loss to complaints by jeopardizing their safety and security in order to raise pecuniary claim against their son.
32. Perusal of complaint filed by complainants clearly shows that allegations have been leveled by complainants against petitioner as well as ICICI Bank but surprisingly, charge-sheet is silent about any investigation made qua role of higher officials of ICICI Bank.
33. Petitioner as such did not have any contract with complainants and it was prima facie ICICI Bank who as an entity had obligation to maintain secrecy regarding financial information regarding complainants bank accounts and FDRs. Without proceeding against ICICI Bank, I am of the view that petitioner solely could not have been proceeded against. As per documents placed on record, it was petitioner who used her ID CR 19/2021 Chavi Anurag Goyal Vs. State Page no....24 of 32 to access financial information of complainants which she disclosed in course of judicial proceedings.
34. Under provisions of Domestic Violence Act, a husband has obligation to maintain his wife if certain conditions are fulfilled as per provisions of the Act. Complainants' son is husband of petitioner who in complaint filed under provisions of Domestic Violence Act wanted to get maintenance from him. Son of complainants in order to evade his responsibility transferred huge amount of money to his parents account (complainants herein). Petitioner after accessing bank account information of complainants divulged the same before Court of law in DV Act proceedings filed by petitioner. Though petitioner could have got procured this information by moving appropriate application before Court of law but she misusing her official position had access to financial information of complainants which she disclosed before Court of law. Manner of bringing the information before Court of law may not be morally right but it can not be said by this act of petitioner, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that can not be termed to be wrongful gain to petitioner. Act of petitioner does not fall CR 19/2021 Chavi Anurag Goyal Vs. State Page no....25 of 32 within definition of wrongful gain or wrongful loss as defined u/s 23 IPC (it is pertinent to mention that wrongful gain or wrongful loss has not been defined under IT Act).
35. Second limb of ingredients of offence u/s 72A of IT Act is that petitioner in breach of lawful contract divulged financial information of complainants to any other person.
36. Court of law can not be said to be any other person to my mind. Further, breach of lawful contact if any was made by ICICI Bank and not by petitioner directly. So, act of petitioner does not satisfy ingredients of offence u/s 72A of IT Act and impugned order can be said to have been passed without appreciating correct position of law in this regard and is liable to be set aside.
37. So far as framing of charge u/s 409 IPC is concerned, commission of criminal breach of trust by banker is a must. Criminal breach of trust as defined by Section 405 IPC requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one's use that property or disposal of the property in violation of direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.
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38. Petitioner filed judgment in case titled as " GHCL Employees Stock Option Trust Vs. India Infoline Ltd. MANU/SC/0271/2013" wherein Hon'ble Supreme Court of India held as below:-
"There is no dispute with regard to the legal proposition that the case of breach of trust or cheating are both a civil wrong and a criminal offence, but under certain situations where the act alleged would predominantly be a civil wrong, such an act does not constitute a criminal offence."
39. Petitioner further filed judgment in case titled as " Sadhupati Nageswara Rao Vs. State of Andhra Pradesh MANU/SC/0625/2012" wherein Hon'ble Supreme Court of India held as below:
"In order to prove the offence of criminal breach of trust which attracts the provision of Section 409 IPC, the prosecution must prove that one who is, in any manner, entrusted with the property, in this case as a dealer of fair price shop, dishonestly misappropriates the property, commits criminal breach of trust in respect of that property. In other words, in order to sustain conviction under Section 409 IPC, two ingredients are to be proved: namely, i) the accused, a public servant or a banker or agent was entrusted with the property of which he is duty bound to account for; and ii) the accused has committed CR 19/2021 Chavi Anurag Goyal Vs. State Page no....27 of 32 criminal breach of trust. What amounts to criminal breach of trust is provided under Section 405 IPC. The basic requirement to bring home the accusations under Section 405 IPC are the requirements to prove conjointly i) entrustment and ii) whether the accused was actuated by dishonest intention or not, misappropriated it or converted it to his own use to the detriment of the persons who entrusted it."
40. Petitioner further relied upon judgment in case titled as "Birla Corporation Limited Vs. Adventz Investments and Holdings Limited & Others Criminal Appeal No. 875/2019" wherein Hon'ble Apex Court held as below: "Use of the documents in judicial proceeding by the respondents is to substantiate the case of oppression and mismanagement of the appellant-Company. Absolutely, no "dishonest intention" or "wrongful gain" could be attributed to the respondents. Likewise, there is no "wrongful loss" to the appellants so as to attract the ingredients of Section 378 and 380 IPC.
77. The intention under Section 24 IPC "dishonestly" must be to cause "wrongful loss" to the other or to have "wrongful gain" for oneself. In determining whether a person has acted dishonestly or not, it is the intention which has to be seen. By filing the documents in the legal proceedings, there is no CR 19/2021 Chavi Anurag Goyal Vs. State Page no....28 of 32 intention on the part of the respondents to cause "wrongful loss" to the appellant nor intention to make "wrongful gain" to themselves. Filing of the documents in the legal proceedings is only to vindicate their stand in the company petition. We find much force in the submission of the learned senior counsel, Mr. Sibal, appearing for respondents No.1 to 5 that the attempt of the appellant in trying to prosecute the respondents appears to arm-twist the respondents in an attempt to shut out the relevant material documents before the CLB proceedings by prosecuting respondents No.1 to 9 and in the civil suits."
41. Petitioner further relied on judgment in case titled as "M/s. Indian Oil Corporation Vs. M/s. Nepc India Ltd. & Ors. Appeal (CRL) 834 of 2002" wherein Hon'ble Apex Court discussed ratio in judgment titled as "Chelloor Mankkal Narayan Ittiravi Nambudiri Vs. State of Travancore, Cochin AIR 1953 SC 478" wherein Hon'ble Apex Court held as below: "to constitute an offence of criminal breach of trust, it is essential that the prosecution must prove first of all that the accused was entrusted with some property or with any dominion or power over it. It has to be established further that in respect of the property so entrusted, there was dishonest misappropriation or dishonest conversion or dishonest use or disposal in violation of a direction of law or legal contract, by the accused himself or by someone else which he willingly suffered to do.
CR 19/2021 Chavi Anurag Goyal Vs. State Page no....29 of 32 It follows almost axiomatically from this definition that the ownership or beneficial interest in the property in respect of which criminal breach of trust is alleged to have been committed, must be in some person other than the accused and the latter must hold it on account of some person or in some way for his benefit."
42. Here, petitioner was not directly entrusted with property which is bank accounts and FDR information pertaining to complainants. There can not be said to be any dishonest misappropriation or conversion to her use of information pertaining to bank accounts of complainants by petitioner by use of the same in judicial proceedings as by bringing this information before Court, petitioner wanted to bring before concerned Court conduct of son of complainants who is husband of petitioner. Word "Dishonestly" has been defined u/s 24 IPC which provides that whoever does anything with intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing dishonestly. As mentioned earlier, petitioner could have brought on record, information pertaining to bank account of complainants by moving appropriate application before concerned Court in DV CR 19/2021 Chavi Anurag Goyal Vs. State Page no....30 of 32 Act proceedings but she herself used improper means to procure this information but intention of petitioner can not be said to be dishonest and distinction has to be made in a civil wrong and criminal offence (as laid down in case titled as GHCL Employees Stock Option Trust - Supra). No amount in bank accounts of complainants or in FDRs of complainants has been transferred to account of petitioner and it is for competent Court of law to decide as to whether any maintenance to petitioner under provisions of DV Act is to be granted or not. There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs. Judgment filed by petitioner in case titled as Birla Corporation Limited (Supra) clearly shows that it can not be said to be any dishonest intention on part of petitioner while using financial information pertaining to complainants so as to bring out conduct of son of complainants before competent Court of law. Ld. Trial Court in impugned order has failed to discuss ingredients of offence u/s 409 IPC visavis facts and CR 19/2021 Chavi Anurag Goyal Vs. State Page no....31 of 32 circumstances of present case and to my mind, no charge u/s 409 IPC can be framed against petitioner for her act.
43. In view of my above made discussion, I am of the view that impugned order dated 04.01.2021 passed by Ld. Trial Court has failed to meet parameters of law and requires to be set aside which is accordingly set aside.
44. Petitioner is discharged of offences u/s 72A IT Act and Section 409 IPC.
45. Revision petition filed by petitioner is therefore allowed.
46. Let copy of this judgment be sent to Ld. Trial Court alongwith TCR.
Dictated and Announced (Sonu Agnihotri)
in the open court through VC ASJ03 (SouthEast),
on 24.02.2022 Saket Courts, Delhi
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