Delhi District Court
State vs Hirdesh Sharma Anr on 24 August, 2024
IN THE COURT OF MS. TANVI KHURANA,
CHIEF JUDICIAL MAGISTRATE, DISTRICT SOUTH,
SAKET COURTS COMPLEX, NEW DELHI.
CNR No.DLST020006392011
IN THE MATTER OF:
STATE Vs. HIRDESH SHARMA ANR
FIR No. 159 /2006
PS Crime Branch-South Delhi
U/s 381 /411 IPC & 43/66 of the Information Technology Act, 2000
JUDGMENT
A) Sl. No. of the case : CR No.2035846/2016
B) The date of commission of : October 2004.
offence
C) The name of the complainant : Sh. Prem S. Rawat, General
Manager - (Admn. & Operation),
Net 4 India Ltd., AB-11, Community
Center, 1st & 2nd Floor, Safdarjung
Enclave, New Delhi-110029.
D) The name and address of : (1) Hirdesh Sharma, S/o Sh. K.N.
accused Sharma, R/o House No.F-41A, Hari
Kunj, New Delhi-110064;
(2) Manoj Jindal S/o Sh. Balbir
Chand, R/o House No.B-9-334, Near
Police Station Barnala, Punjab.
E) Offence complained of : 381 /411 IPC & 43/66 of the
Information Technology Act, 2000
FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.1 of 29
PS Sarojini Nagar (EOW) Digitally signed by
TANVI TANVI KHURANA
KHURANA Date: 2024.08.24
17:30:30 +0530
F) The plea of accused : Not Guilty
G) Final Order : Acquitted
H) The date of such Order : 24.08.2024.
DATE OF INSTITUTION : 28.07.2011
DATE OF FINAL ARGUMENTS : 23.08.2024
DATE OF JUDGMENT : 24.08.2024
THE BRIEF REASONS FOR THE JUDGMENT:-
1. The accused persons have been sent to face trial before this Court upon allegations of commission of offences punishable under Section 411 and 381 Indian Penal Code (herein after referred as IPC) r/w Secton 43/66 Information Technology Act, 2000.
The case of the prosecution
2. It is the case of the prosecution as reported in the charge sheet that complainant being the General Manager of M/s Net 4 India Ltd. (the company) alleged that the accused Hirdesh Sharma caused theft of e-cards (internet telephony, minutes) worth Rs. 3,00,00,000/- and caused a loss of Rs. 1,29,00,000/- to the company. The company was stated to be engaged in providing internet related services such as internet telephony and voice over IP network services under the brand name "Phonewala.com". The company used to buy bulk internet telephony minutes in various denominations from US based Companies such as Net2Phone, Go2Call and so on through its associate- Trak Online Net India Pvt. Ltd. The agreements were entered into by Trak Online and it used to sell the telephony minutes through Net 4 India FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.2 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:30:38 +0530 Ltd. The complainant company used to sell calling cards for a fixed denomination either as cash cards or online cards and maintained huge stocks online and through cash cards. The information of these minutes was stored on the server access to which was restricted with passwords. The support team was required to be available round the clock and access to the codes and passwords was available only with four employees. The complainant reported that the company started receiving complaints about availability of prepaid internet telephony cards of the company at cheaper rates and that some accounts under usage were not sold by the company. To resolve this, the access was further restricted. The servers were controlled from NOIDA corporate office and the company monitored the IP addresses accessing the servers. It was alleged that at the midnight of 17-18.08.2005, few accesses from stranger IP addresses were observed. The company found from Net2Phone about the IP addresses and company contacted APNIC.net (Asia Pacific Network Information Centre, Australia) and found that the IP Addresses belonged to Sify but Sify did not provide the information about the users of the IP Addresses to the company. The company found that the IP addresses could be tracked down to the email address of accused Hirdesh Sharma who was the employee of the company employed as Engineer (NOC & Intergration). The company found that accused Hirdesh had gone to NOIDA Office at 11:20 pm on 17.08.2005 and had copied the passwords and contents of email from the computer of Ms. Shikha, another employee and sent using his email- [email protected] to yes4urediffmail.com at FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.3 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:30:45 +0530 12:21 am on 18.08.2005. It was also alleged that he again came to NOIDA office and took the passwords from the computer of Ms. Shikha and logged into Net2Phone website for copying the generated PINs Accounts at 03:35 pm (EST) on 17.08.2005 (which would be 01:05 am on 18.08.2005, IST). Upon gaining this knowledge, Sh. Desi S. Valli, Director-Technical & Operations confronted the accused and the accused then admitted about his involvement since October 2004 in stealing and selling the prepaid minutes by creating fictitious email accounts such as [email protected] and [email protected] and disguising himself to be Amrit, Vikas Sharma and other such fictitious persons, he would sell the stolen prepaid minutes to the customers of the company. A list of the names of customers was also recovered from the drawer used by him. It was mentioned that the accused had also told the Director that he had obtained the password of the server from Sh. Ritesh Jalan in March. 2005 and that he had sold most of the stolen prepaid minutes to Manoj Jindal for cash. It was also reported that an employee of the company, namely Anuj, acted as a decoy to contact accused Manoj Jindal and it was revealed that he was involved in buying the stolen minutes. It was also confessed by accused Hirdesh that he had sold the minutes to M/s Plus Communication as well. The company through Mr. Jeen Ronald accessed the data of accused Hirdesh and found that he had stolen the minutes worth Rs. 3 Crore out of which minutes worth Rs. 2 Crore was directly sold to accused Manoj. The complainant also reported that the accused Hirdesh had gained unauthorized entry to the corporate office at FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.4 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:30:49 +0530 NOIDA to steal the data. It was mentioned in the complaint the company was able to block minutes worth Rs. 2.1 Crore. On such allegations, FIR was registered and investigation began.
3. During investigation it was revealed that the accused Hirdesh had also created emails such as [email protected] and [email protected] in addition to the email addresses provided in the complaint. His emails also reflected that he had sold the minutes through email to accused Manoj Jindal. These emails contained the PINs. Three IP addresses were found from which unauthorized login was attempted in the Net2Phone application and it was found that accused Hirdesh had also used his email ID- [email protected] from the two of those IP addresses at the same time when the attempts were made, out of which one was successful. The entry at the gate in the register also revealed that accused Hirdesh had visited the Office at NOIDA at the same time. The analysis of the hard disk belonging to the accused Hirdesh revealed that there were VOIP minutes Accounts and PIN details, evidence of sale and the money received, email addresses of customers, call records and so on. The investigation was completed and the charge-sheet and the supplementary chargesheet was filed accordingly.
Proceedings before the Court
4. Cognizance was taken by the Ld. Predecessor vide order dated 21.09.2011. Mandate provided under Section 207 CrPC was completed and vide order dated 21.07.2016, Ld. Predecessor framed charge under Sections FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.5 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:30:55 +0530 381 IPC and Section 43/66 Information Technology Act against the accused Hridesh Sharma and Section 411 IPC against accused Manoj Jindal to which they maintained their innocence and claimed trial.
Evidence adduced by the Prosecution
5. In order to establish its case, the prosecution examined the following witnesses:
5.1 PW-1 Sh. Prem Singh Rawat (the complainant) deposed that on 06.09.2005, he was working as General Manager, Admin. & Operation with Net 4 India Ltd. He was in the said employment since 26.12.2001. He further mentioned that Net 4 India was dealing in domain, hosting, VOIP and Internet Telephone Services and Net -4 India was the whole distributor of Internet telephony and VOIP services of Trak Online Net India Pvt. Ltd. It was also mentioned that Net 4 India was the sole distributor and was selling the Internet telephony minutes across the country which were purchased by Trak Online Net India Pvt. Ltd. from M/s Net2Phone and M/s Go2Call. He also deposed that Trak Online had an agreement for selling the internet telephony minutes through Net 4 India Ltd. He further mentioned that they came to know from the market that their internet telephony minutes were being sold at a cheap rate in the market and were easily available. This information was received from various clients of the complainant company.
He further deposed that the company checked at their own end and found that access was with only four support team members which was then restricted to three people- one from marketing, one from purchase and one FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.6 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:03 +0530 was their technical director who could monitor the access of internet telephony services through their server. It was further mentioned that on 17.08.2005, accused Hridesh Sharma had visited the office at Noida at around 11:30 pm and accessed the computer of Ms. Shikha, hacked the password, logged into the server and downloaded the internet telephony minutes and sent a mail to his own e-mail accounts i.e. [email protected]. It was also alleged that on 18.08.2005, accused Hridesh again hacked the password from the computer of Ms. Shikha and downloaded the minutes. He stated that the details of entry and exit were available at Net 4 Security guard system. It was further alleged by the witness that accused Hridesh also logged in the Net2Phone server from his Sify connection as per the details taken by the complainant company from APNIC. He deposed further that it was confirmed that it was the accused Hridesh who was involved in stealing internet telephonic minutes from the server of the complainant company. He further mentioned that Mr. Desi Valli, Technical Director had also called accused Hridesh Sharma and questioned him and he had confessed his crimes and informed Mr. Valli about the entire modus. The witness correctly identified the accused before the court. He further deposed that the total loss incurred by the complainant company was worth Rs. 3.38 crores out of which Rs. 2.1 crores were the value of internet telephone minutes which were blocked and the net loss of Rs. 1.28 crores. He also mentioned that accused Hridesh had accepted his guilt in a written letter and the relevant documents were given to IO on FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.7 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:08 +0530 01.04.2006. He also mentioned that in September 2005, he had filed the complaint Ex. PW1/A and supplied the documents to the IO. He mentioned that the documents supplied along with the complaint were Mark PW1/A (colly) to Mark PW1/F (colly). He further deposed that on 02.08.2006, accused Hridesh Sharma was arrested vide arrested memo Ex. PW1/Z and his personal search memo was Ex. PW1/Y. He also deposed that the mobile phone recovered from the possession of accused was seized vide Ex. PW1/G and the details were Mark 1/H. He also identified the seizure memo of the documents which was Ex. PW1/I and the certified copy was Ex. PW1/J (colly). He also identified the seizure memo Ex. PW1/K vide which the e- mails sent to the sellers to block the internet telephonic service and coding of PINs were seized and the e-mails were Mark 1/L (colly).
During the cross-examination, the witness responded that Net 4 India had not obtained any licence from the government or DOP for dealing with domain, hosting, VOIP and internet telephonic services. It was mentioned by the witness that the licence was not required for domain and hosting and for VOIP selling and internet telephonic service, the internet service provider can appoint a franchise to market VOIP and internet services as per agreement. He mentioned that the copy of agreement executed between Trak Online Net India Pvt Ltd and Net 4 India were given to the IO and the witness was not a signatory to the agreement. He mentioned that the original document was not given to the IO. He was not aware about the person under whose possession the document was as he had FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.8 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:14 +0530 left the employment on 11.06.2015. He could not remember whether there was any proof of purchase of internet telephonic minutes of cash card by the complainant company submitted to the IO. He mentioned that as per the agreement, they had opened a purchase system and the billing was carried out at that time either after succeeding month or on quarterly-basis. He stated that the copy of this agreement was not given to the IO which was executed between Net2Phone (US based company) and Net 4 India and the subsidiary. He denied to the suggestion that Net 4 India could not have entered into the agreement with Net2Phone. He mentioned that the agreement executed between Trak Online Net India Pvt Ltd and Net 4 India Ltd was executed on 01.04.2001 and was valid for one year only unless extended. He stated that the copy of the extended agreement was not provided to the IO. He was asked that whether the complainant company had provided any record to IO to show that the total amount of the Internet Telephonic minutes allegedly used unauthorizedly and showing the value of the same. The witness answered that the total theft was of stock of Rs. 3,38,52,500/- out of which they were able to block the stock of Rs. 2 crores approx and the detail was in Mark PW1/E and Mark PW1/I (colly). He mentioned that Mark PW1/L was the e-mail accompanied by the list of PIN numbers and it was sent to Net2Phone, USA by the purchase department regarding unsold and unused online PINs. He could not recall that whether the proof of billing of Rs. 1.29 crores was given to the IO. He stated that account department might have it. According to the witness, the incident was FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.9 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:20 +0530 revealed on 17-18.08.2005 and he had approached the police for registration of complaint in September, 2005. The witness also mentioned that accused Hridesh was posted at Safdarjung Enclave Office as NOC/Support Engineer. He volunteered that in the cooperate office situated at Noida, there is no assignment in terms of any support. He responded that the technical setup of the complainant company was at Safdarjung Enclave Office. He was asked whether he had verified that accused Hridesh Sharma was asked by Sh. Arup Pal, Manager to visit the Noida office as there was technical snag. The witness responded that the complete setup of technical equipments was installed at the Delhi office and no support engineer was supposed to visit the corporate office. When asked that what was the proof submitted to the IO then complainant company came to know that their internet telephony minutes were sold at a cheaper rate, the witness mentioned that there was a transcript of chat between Hridesh Sharma and Manoj Jindal which was Mark PW1/C. He could not recall about the application used for the chat but mentioned that it would be Yahoo chat or Microsoft chat. He mentioned that the transcript of given to him by Mr Desi Valli which ran into 14 pages but in the said transcript name of Hridesh Sharma did not appear. He could not recall the names of the clients who had informed the complainant company about the availability of calling cards at cheaper rate. He also could not recall that whether the names of the clients were given to the IO. The witness responded that accused Hridesh was never given the authority to access the user names and passwords of the server. He also mentioned that FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.10 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:25 +0530 the e-mail ID [email protected] was sent from their office and it was confirmed from the IP address. He did not remember that whether the proof that the e-mail ID was being used by accused Hridesh was given to the IO or not. When asked whether any evidence was provided to IO to prove that accused Hridesh had unauthorizedly accessed the computer of Ms. Shikha, the witness answered that the logs of PC and IP addresses were available with the company but he was not able to remember that whether they were handed over to the IO or not. At this stage, he was shown the judicial file and after going through the documents, he mentioned that no such evidence was given to IO. He was asked that whether the evidence of the allegations made in the complaint that accused had created e-mail IDs in fake names such as [email protected], [email protected] and [email protected] was handed over to the police. The witness mentioned that the hard disk of the computer was seized by the police and logs and IP addresses were on record. He stated that he never saw the hard disk and it was informed by the IO that it was seized. The witness further answered that on 17.08.2005, access was made from their NOIDA office and the complainant company started monitoring the IP address that were used to access its server for about 3-4 months prior to 17.08.2005. According to him, during his period the only unauthorised access was done by Hridesh Sharma. It was asked specifically that whether the evidence to show that any user names or passwords were stolen from the complainant company prior to 17.08.2005 was handed over to the IO. The witness answered that the details FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.11 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:30 +0530 of calling cards were given with their complaint from 16.03.2005 but the log was not handed over to the IO. He admitted that Sify had not provided any details pertaining to IP addresses through which the access was made on 17.08.2005. He mentioned that the mails forwarded by Hridesh Sharma from the IP address was handed over to IO to show that the e-mail address was used by accused Hridesh Sharma. He did not remember that whether details of customer were given to the police. He admitted that some of the accounts of the company were not even sold to the customers which were mentioned at point 16 of the complaint. He mentioned that he had no concern with filing of returns before the ROC therefore, he was not aware whether the details of loss were shown in the returns. He did not have any personal knowledge about the loss shown or submitted before ROC. He mentioned that the confession letter of accused Hridesh was neither signed or nor written in his presence. He denied the suggestion put to him by Ld. Counsel for accused Hridesh Sharma.
Ld. Counsel for accused Manoj Jindal also cross-examined the witness wherein he admitted that there were separate department of marketing and sales in the company and it was Sh. Desi Valli who was the In-charge of marketing and sales. According to him, the rates of the minutes were fixed by marketing and sales department headed by Sh. Desi Valli. He admitted not having personal knowledge of rates of telephonic minutes. He was not aware whether their company was advertising about the telephonic minutes at that time or that whether there was any information about public FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.12 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:37 +0530 domain that any official of Net 4 India was authorised to sell the minutes on behalf of the company. He admitted that Net 4 India was selling the minutes through channel partners and franchises but he was not aware whether other companies were also used to purchase the minutes from Net2Phone. He was not aware about the billing procedure or their discounts. He was not aware that Net 4 India had received Rs. 18,00,000/- by way of cheque. He denied to rest of suggestions put to him by Ld. Defence Counsel.
5.2 PW-2 Ms. Gunjan Lata, Manager, Central Bank of India, Delhi Cantt Branch brought the account opening form with KYC documents, driving licence of accused Hirdesh Sharma bearing account no. 1020256305 filed with the bank at the time of opening of the account. She also brought the statement of abovesaid account from 30.06.2006 to 30.11.2018 which was Ex.PW2/A (colly) and she mentioned statement of account from 16.01.2006 to 08.02.2006 was not available. She identified the stamp of the bank on Mark X. No questions were asked from the witness in cross-examination.
5.3 PW-3 Sh. Ajeet Singh, Manager, Competent Finman Pvt Ltd, deposed that on 12.08.2006, he had written a letter to EOW, which was Ex.PW3/A. The attested copy of documents was Ex.PW3/B (colly). His authority letter was Ex.PW3/C. No questions were asked from the witness in cross-examination.
5.4 PW-4 ASI Akbar Ali deposed that on 25.03.2006, SI Neeraj
FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.13 of 29
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Kumar had handed over the rukka on complaint Ex.PW1/A to him for registration of FIR. He had got the FIR registered.
No questions were asked from the witness in cross-examination.
5.5 PW-5 HC Ravinder Kumar deposed that on 14.09.2009, on the directions of IO SI Mukesh Kumar, he collected the case property to deposit the same at FSL. He mentioned that till the case property was in his possession, the same was not tampered at any point of time.
In his cross-examination he mentioned that the case property was sealed when taken to FSL but he could not remember the impression inscribed on the case property or the name and designation of the officer who received it.
5.6 PW-6 Sh. Amit Chaudhary, A. General Manager, IDBI Bank brought the certified copy of account opening form of account no.003104000052492 in the name of accused Manoj Jindal {Ex.PW-6/A (colly)}. He also brought the statement of account from 01.04.2004 which was Ex.PW6/B (colly).
No questions were asked from the witness in cross-examination.
5.7 PW-7 ASI Attar Singh deposed that on 14.09.2009, he made entries in register no.21 vide RC no.46/21 dated 14.09.2009 with respect to handing over of three pullandas as mentioned in the RC through Ct. Ravinder to take it to CFSL, Chandigarh which was Ex.PW-7/A (OSR). He mentioned that on 16.09.2009, Ct. Ravinder had handed over the copy of RC FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.14 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:50 +0530 in which receiving by CFSL, Chandigarh was recorded, as it was pasted by him in the register, the copy was Ex. P1. He deposed till the time, the pullandas were in his possession, there was no tampering with the said case property.
No questions were asked from the witness in cross-examination.
5.8 PW-8 ACP T.R. Mongia deposed that on 07.04.2010, the investigation was assigned to him and he completed the charge-sheet and filed the same before the Court.
In his cross examination, he denied to the suggestions put to him but admitted that he had not conducted any investigation.
5.9 PW-11 Sh. M. Baskar, Director, CFSL, Bhopal deposed that on 15.09.2009, he was posted at CFSL Chandigarh as Junior Scientific Officer and on that day, three parcels with seal of 'NKA' were received sent by Addl. DCP EOW Crime branch, New Delhi for retrieval of data. According to him the parcels contained one hard disk make Samsung, one laptop make ACER and one CPU make Hitachi and all were marked as Ex.H1, H2 and H3 respectively. He had examined the devices by 16.02.2010 and the data retrieved was transferred in one DVD-R. He had prepared the report Ex. PW11/1 and had handed over the DVD to IO in sealed envelope. The envelope contained a DVD upon which 'PHY/ 136/ 09' and 'CFSL/246/ 2012/CF/ 07/2012' were written. The DVD was Ex.PW11/2. The witness was recalled for further examination however, vide a separate statement, the report was admitted and thereafter, the witness was dropped. FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.15 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:31:56 +0530 5.10 The registration of FIR, the CFSL report and the reply of PW Jyoti dated 30.04.2006 were admitted under Section 294 CrPC (Ex. D1, Ex.PW11/1 and Ex. PW11/2). Hence, the authors of the documents were not called in evidence.
6. This is the entire evidence adduced by the prosecution. The prosecution evidence was therefore, closed accordingly. All the incriminating evidence was put to the accused and their statement u/s 313 CrPC r/w 281 CrPC was recorded. The accused persons maintained their innocence and did not opt to lead any defence evidence.
Arguments advanced
7. Ld. APP for the State argued that the relevant documents such as the email ids and the data retrieved clearly point out that the accused Hirdesh had committed theft of the data after planning and making preparations. He further contended that complainant has supported the case of the prosecution and the recovery from accused Manoj Jindal also proves his involvement. He therefore, contended that the prosecution has established its case.
8. Per contra, Ld. Defence Counsel for the accused Hirdesh Sharma argued that the IO in this case had not investigated rather the entire chargesheet only mentions the contents of the complaint of the complainant. It was mentioned that the complaint was lodged on 06.09.2005 and the accused was arrested after 11 months and the seizure of the hard disk was also made after 11 months on 06.08.2006. He further contended that no FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.16 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:03 +0530 witness from Sify or Rediffmail.com were examined to established that the alleged email address was of the accused or was used from the IP address belonging to the accused. He also questioned that Net 4 India has not shown any document to substantiate the allegations of purchase/sale at cheaper rates, persons who sold the minutes and at what rate and so on. He also mentioned that there was no evidence of wrongful loss. He mentioned that relevant witnesses such as Ms. Shikha, Sh. Jeen, Sh. Desi Valli and Sh. Ritesh Jalan could not be examined. Moreover, the security guard at the NOIDA Office was also not examined to prove the entry register. He also challenged the documents adduced on the ground that the copies were produced which were not proved before the Court. He challenged the transcript produced also on the ground that it does not mention the name of the accused and the certificate under Section 65B Indian Evidence Act was also not annexed. He pointed out that the same IP address was available with 8 users of which the accused was one however, it could not be established that it was solely the accused who used it. He mentioned that no witness was examined pertaining to the seizure of the hard disk. He also mentioned that the incident was reported to be of 2005 but the account statement prior to 30.06.2006 was not available. It was therefore, argued that the prosecution has failed to establish the case against the accused.
9. Ld. Defence Counsel for accused Manoj Jindal argued that the prosecution failed to establish the recovery from the accused. He argued that PW1 had himself admitted in the cross examination that the accused could FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.17 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:08 +0530 have otherwise as well received the minutes. He also contended that the prosecution could not discharge the burden.
10. I have heard the final submissions advanced by Sh. Rajat Bansal, Ld. APP for State and Sh. Amit Khatana, Ld. Counsel for the accused Hirdesh Sharma and Manoj, Ld. Counsel for accused Manoj Jindal. I have gone through the case record meticulously and have appreciated the evidence adduced in the present matter.
Findings of the Court
11. It is a settled proposition of law that in a criminal trial, it is for the State to prove its case beyond all reasonable doubts by leading reliable, cogent and convincing evidence and it is for the prosecution to ensure that its case is able to stand on its own legs. It is the cardinal principle of criminal jurisprudence that the prosecution has to establish its case beyond reasonable doubt and the evidence should be of a quality that the chain of events should be complete. It is also established through catena of precedents that the evidence adduced should bring home the guilt of the accused leaving no room for any doubt. No matter how weak the defence of accused is but, the golden rule of the Criminal Jurisprudence is that the case of the prosecution has to stand on its own legs.
12. In this case, the complaint was filed alleging that accused Hirdesh Sharma had misappropriated the minutes unauthorized by stealing it and then selling it to accused Manoj Jindal and others. It is pertinent here that the investigation was not conducted qua these "others" especially when FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.18 of 29 Digitally signed by PS Sarojini Nagar (EOW) TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:14 +0530 the name of the entity that is M/s Plus Communication was provided. In addition, the investigation otherwise carried out does not seem to be comprehensive leaving room for several lacunae. It is apparent that the investigation was conducted only upon the leads made available by the company in this case and the documents that they had provided after their own quest for truth. The investigation made by the police had not revealed any other facts or evidence except the hard disk and the electronic devices which were seized about 11 months later. In this case, the entire evidence is primarily documentary hence, it is of essence to scrutinize the documents adduced and the oral testimonies pertaining to the incidents.
13. The only witness of the prosecution, is Sh. Prem S. Rawat/PW1. It is interesting to note here that he happened to be the General Manager at the relevant time and was duly authorized by the company to file the complaint against the accused. He had handed over the documents to the IO. The employment agreement of accused Hirdesh and another employee Ritesh Jalan was among those. These two documents are not relevant for the case at hand as the employment of accused Hirdesh is not disputed.
14. The list of customers {Mark PW1/B (colly)} stated to have been recovered from the drawer used by accused Hirdesh was also annexed with the complaint. PW1 never deposed that when and how was this document found and by whom. It has not come on record that it was PW1 who found the record. moreover, the circumstances in which the record was recovered has also not been clarified either by the investigation or by the company. The FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.19 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:30 +0530 document was merely handed over to the IO. It is not the case where the document was seized by the IO rather the document was produced by the company through PW1 without providing any specifics of its recovery. No witnesses were examined by the prosecution to prove the recovery. The other employees who would have naturally been in office at the time of the alleged recovery have also not been examined. Hence, the document cannot be considered to have been recovered from the accused Hirdesh. Hence, the said document is not found to be incriminating the accused.
15. Mark PW1/C (colly) is the transcript of some chat between "Bhavik" and "Manoj Chandigarh" and "bhavik_ahm" and "divine_lover_punjab_india". The 14-page document consists of a chat. The complaint provides this to be "internet chat". The social media application on which this chat was found was never disclosed. Who took a print-out of this chat and from where was also not disclosed. PW1 during his cross examination could not provide the details of the messenger application used for this chat. Moreover, this computer output was required to be annexed with a certificate Under Section 65B, Indian Evidence Act which has not been produced by the company or PW1. Hence, this chat as well, cannot be considered in evidence against both the accused persons.
16. A photocopy of a bill dated 20.07.2005 is Mark PW1/D again handed over by the company to the IO through PW1. The original document never saw the light of the day. Strangely, the investigation made no efforts to verify this bill allegedly issued by "Plus Communications". The witness FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.20 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:38 +0530 (PW1) had not deposed anything about how this came into the possession of the company. The complaint though indicates that this photocopy of the bill was recovered from the drawer of the accused Hirdesh. Yet again, the details of this recovery are missing. Presumptions cannot be made upon the recovery of the document without any particulars thereof. For sake of brevity, the reasoning explained in para 14 of this judgement against the recovery is not repeated. It was the duty of the investigation to investigate about "Plus Communications". However, neither of the investigating officers ever made any effort to verify this as is reflected from the chargesheet filed and the evidence adduced. Hence, neither the recovery of the document was proved in the court nor the fact that the calling cards worth Rs. 2,556/- were the cards of which the PINs or the passwords were allegedly stolen by the accused Hirdesh.
17. Mark PW1/E (colly) (272 pages) are the printouts of the emails handed over by the company. The complaint reflects these printouts to be the "emails evidencing the pin numbers etc. as downloaded and printed from the E-mail IDs of the said Hirdesh Sharma". These documents definitely are the computer output/ electronic records. The primary evidence in form of the device was not shown or produced. To make these documents admissible, it was required that a certificate under Section 65B, IEA by produced. Without the same, the veracity of these documents cannot be ascertained. It was not been established otherwise that who all had access to the computer from which these documents were retrieved. It has not been proved that who had FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.21 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:44 +0530 the control over the desktop or the computer which was used to take the printouts. The mandatory procedure to make these emails admissible is conspicuously absent in this case. These e-mails have not been proved in the court and hence, reliance on these emails cannot be placed to hold the accused guilty. Moreover, it is the case of the company that they know that these fictitious emails were created and misused by the accused Hirdesh as the tracking of the IP Address proved that it was accused HIrdesh who had logged in at the same time when the said emails were generated. These reports about the tracking of the IP addresses were never proved in the court. Moreover, Mr. Desi S. Valli, Technical Director and Mr. Jeen Ronald, Aid Systems who were responsible for tracking the same could not be examined in this case. The witnesses from APNIC and Sify who allegedly helped in tracking the IP addresses were also not examined. Hence, even the alleged tracking of the IP addresses merely remained bald assertions and were not proved against the accused persons.
18. The prosecution then relied upon Mark PW1/F (2 pages) (---) alleging it to be the confessional statement of accused Hirdesh Sharma. This statement was admittedly not recorded in the presence of PW1. According to PW1, this was made before Mr. Desi S. Valli. This witness could not be traced and hence, was not examined. the statement was hence not have been proved to have been made and written by the accused Hirdesh. There were no efforts on the part of investigation to have matched his handwriting to prove this document against the accused. Hence, this document has not been FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.22 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:49 +0530 proved. Similarly, the company had even handed over the confessional statement of accused Manoj. For the same reasons, even this document is bereft of admissibility and cannot be relied upon.
19. The photocopy of a document claimed to be the entry register maintained at the company was also found on record but was never tendered in evidence by any of the witnesses. The security guard who had maintained this document or the security in-charge under whose supervision, the document was maintained was not joined in investigation. Whether the document was contemporary or created later at the behest of the company is also a void which was not filled. Hence, the allegations that the accused Hirdesh had visited NOIDA office also remained shrouded with doubt. At this stage, it is pertinent here that the allegations of the company that the accused Hirdesh had lured Mr. Ritesh Jalan to part with the password also remained not proved as Ritesh Jalan the presence of this witness could not be secured before the Court. Similarly. It had been alleged that the computer of Ms. Shikha was used unauthorizedly for gaining access to the server for the minutes. However, neither the presence of the accused at NOIDA office could be proved nor Ms. Shikha could be examined. PW1 was not personally available at the NOIDA office to confirm the presence and that computer was never seized to establish that there was an unauthorized access through the device. More importantly, the persons who had carried out the investigation pertaining to the server and the unauthorized access to it, i.e. Mr. Jeen Ronald and Mr. Desi S. Valli were not examined. Therefore, these FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.23 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:32:55 +0530 allegations of commission of theft could not be established.
20. Though, it remained the bone of contention throughout the cross examination of PW1 that the agreement between Trak Online and Net2Phone was not filed to show the authority of the company to purchase and sell the minutes but the company had produced the copy of agreement dated 01.04.2001 entered between Trak Online and Net 4 India (Mark D1) but this document failed to bring home the fact that the company was in possession of the minutes alleged to be stolen later.
21. It is settled law that disclosure statements of the accused recorded by the police during investigation cannot be read in evidence against him. There are seizure memos of the mobile phone of accused Manoj Jindal and documents. The Investigating Officer- SI Niraj Kumar had expired during investigation and the prosecution had not summoned for any witness to identify his signatures and handwriting. Unfortunately, the witness to these documents- HC Leela Dhar had also expired by the time he had been summoned for his examination. Hence, the seizure memo of the mobile phone of the accused Manoj was not proved in the Court. As has been discussed in the preceding paragraphs, the electronic record in form of printouts was required to be annexed with the certificate under Section 65B Indian Evidence Act. In this case, neither the seizure of these emails nor the emails could be established according to the procedure established by law. The IO- SI Neeraj Kumar in the presence of HC Leela Dhar (both now deceased) had also seized the laptop and CPU and hard disk along-with the FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.24 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:33:00 +0530 printout of the files contained in the said devices on 05.08.2006 and 03.08.2006. Yet again, the electronic record cannot be relied upon due to lack of any certificate under Section 65B, Indian Evidence Act and the seizure has not been proved as the witness could not be summoned before the court. The chequebook belonging to accused Hirdesh was also seized. The seizure was not proved and the said cheque book is also not relevant for the case expect for gathering the account number and the name of the bank. The keypad mobile phone belonging to the accused Hirdesh was also seized vide Ex. PW1/G. PW1 was a witness to this seizure. The author of this document- SI Neeraj Kumar could not be examined. However, it is pertinent here that the keypad mobile phone make Nokia 1100, did not lead the investigation to anything incriminating against the accused. The list of contacts in that phone (Mark PW1/H) was annexed with the seizure memo. However, nothing in the chargesheet or the evidence points out that the contacts saved in this mobile phone were the persons to whom the said telephony minutes were sold. The investigating agency had not investigated the contacts. The document also remained not proved as the electronic record was not accompanied by the mandatory certificate and the mobile phone was not produced.
22. The email dated 07.04.2006 received from Sify by IO-SI Neeraj was also placed on record with the chargesheet. The said email could never be proved before the court as the sender was not made a witness and the recipient could not be examined. This document cannot be hence relied FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.25 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA 17:33:06 Date: 2024.08.24 +0530 upon. However, this document reflects that on 17.08.2005, the IP address 221.134.63.151 was used by Ghulam Murtaza and on 18.08.2005 by accused Hirdesh Sharma and IP address 221.134.63.8 was used on 18.08.2005 by Hirdesh Sharma and Vinod Bisht. Nevertheless, this document is rendered inadmissible due to lack of any proof regarding its authenticity.
23. The IO had also seized the emails between Mr. Desi S. Valli and Mr. Solomon pertaining to misappropriation of the minutes by the accused Hirdesh i.e. Mark PW1/L (colly). These documents also lacked the certificate under Section 65B, IEA. Moreover, the sender and recipient of the emails were also not examined in this case, hence, these emails do not hold any evidentiary value in this case. Moreover, these emails pertain to request for blocking the batches of the minutes.
24. Ex.PW11/2 was the letter received from rediffmail.com on 30.04.2006 by the office of Astt. Commissioner of Police, IPR & Cyber Crime, EOW. According to this letter, no used such as "yes4you" was found but email address "[email protected]" was found to be used by accused Manoj Jindal and his log in details with the IP address was also supplied. This letter again widens the void as though the witness from rediffmail.com was never examined and the document was not proved by it author but the user id "yes4you" could not be linked to accused Hirdesh Sharma.
25. The bank documents such as Mark X (from 16.01.2006 to 08.02.2006), Ex. PW3/B (colly)- account opening form of accused Manoj FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.26 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:33:12 +0530 Jindal, the account statement from 25.06.2006 till 02.08.2006 (not proved due to lack of certificate and not of relevant time) and Ex. PW2/A (colly)- account opening form of accused Hirdesh Sharma and his account statement from 11.01.2005 till 30.11.2018 (however not available before 30.06.2006) have not been able to bolster the case of the prosecution. The money trail has not been established by the prosecution and that the funds were received by the accused at the relevant period of time could not be established as the account statements of the relevant time were not available.
26. The prosecution lastly relied upon the examination report dated 16.02.2010 (Ex. PW11/1) and dated 06.03.2013 which provided the data retrieved from the hard disk and DVD-R seized from the accused. As it can be recalled that the seizures of the hard disk and other devices were never established before the Court. (discussed in preceding paragraphs). Ergo, the contents of the hard disk cannot be relied upon. Moreover, there were no independent witnesses joined at the time of the seizure. (Reference made to Nanak Chand v The State of Delhi, 1991 JCC 1 decided by Hon'ble Delhi High Court and Roop Chand vs. State of Haryana, 1999 (1)C.L.R 69, decided by Hon'ble High Court of Punjab & Haryana).
27. It was the duty of the prosecution to have established beyond reasonable doubts that accused Hirdesh Sharma had committed theft of the telephony minutes from the company under whose employment he was working at that time. The prosecution could not establish that accused Hirdesh had clandestinely visited the office at NOIDA, unauthorizedly FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.27 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:33:18 +0530 accessed the computer of Ms. Shikha or earlier procured the password through Mr. Ritesh Jalan. The persons from the company who claimed to have investigated the matter could not be examined in this case. The electronic record/computer output remained to be proved and witnesses to establish his presence at the NOIDA on 17.08.2005 and 18.08.2005 were not examined. The prosecution further failed to establish that the accused Hirdesh had dishonestly or fraudulently accessed the computer system of the company and downloaded, copied or extracted the data i.e. the telephony minutes. The recovery of allegedly stolen minutes could not proved from accused Manoj Jindal according as neither the independent witnesses were joined at the time of recovery and the IO who had recovered and the police official who had witnesses the recovery could not be examined. There is nothing in this matter to bring home a verdict of guilt for any of the two accused. Hence, the prosecution failed to establish the case to the hilt as required under criminal jurisprudence.
28. In view of the above findings accused Hirdesh is accordingly acquitted for the offence punishable under Sections 381 Indian Penal and Section 66 read with 43 of Information and Technology Act, 2000. Further, accused Manoj Jindal also stands acquitted for offence punishable under Section 411 of Indian Penal Code. The Bail Bond stands cancelled. Surety stands discharged. Documents, if any, be returned after cancellation of the endorsement, if any, on proper receipt and identification.
29. Case property, if any, be confiscated to the State after the expiry FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.28 of 29 PS Sarojini Nagar (EOW) Digitally signed by TANVI TANVI KHURANA KHURANA Date: 2024.08.24 17:33:28 +0530 of the period of the appeal. Any accounts frozen be de-frozen. Accused are directed to furnish necessary personal bond under Section 437A CrPC.
30. File be consigned to Record Room, after due compliance.
Digitally signed by TANVI TANVI KHURANA
KHURANA Date: 2024.08.24
17:33:35 +0530
(TANVI KHURANA)
CHIEF JUDICIAL MAGISTRATE
DISTRICT SOUTH, SAKET COURTS COMPLEX
Announced in the open Court
On 24th August, 2024
FIR No.159/2006 State v. Hirdesh Sharma & Anr Page No.29 of 29
PS Sarojini Nagar (EOW)