Bangalore District Court
State By Cyber Crime Ps vs Nos.1 And 2 Along With Others In on 6 March, 2015
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 6th day of March 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.37986/2010
Date of Offence : 22/04/2009
Name of complainant : State by Cyber Crime PS
Name of Accused : 1.Nikhil Dhingra
s/o.Lalith Dhingra,
19 Yrs., R/No.1386
(Old No.503/A),
Dhyanchand Colony,
Prem Ganj, Sipri
Bazar, Jhansi. U.P.
2.Saupam Das
s/o.Late Pankaj
Kumar Das, 20 Yrs.,
R/O Flat No.03,
Sarada Apartments,
No.17/17, Baishnab
Ghat Road, Kolkata.
3.Sourav Ghosh
4.Subrato Mukherjee
5.Sanjay Singh(Split-up)
Offence complained : U/s.66(C),66(D) of IT Act
& Sec.417 r/w 34 of IPC.
2 CC NO.37986/2010
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 06/03/2015.
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JUDGMENT
1. The Deputy Superintendent of Police, Cyber Crime Police Station, Bangalore has filed the charge sheet against the accused alleging that, they had committed the offences punishable U/s.66(C), 66(D) of Information Technology Act 2008 and Section 417 r/w 34 of IPC.
2. The case of the prosecution in brief is that Accused Nos.1 and 2 along with others in furtherance of common intention to cheat the customers of ICICI Bank falsely fabricated a template of ICICI Bank with an intention to send phishing mails to obtain login details. Cw.2 is having his Bank account in ICICI Bank NRI Account No.0002010814477 at M.G.Road Branch, Bengaluru. 3 CC NO.37986/2010 Accused No.1 a Professional Cyber Criminal has sent a phishing e-mail inducing the complainant for providing login particulars by personating the Bank under the pretext of updating the account. Being induced by the phishing e-mail sent by the accused No.1, Cw.2 has furnished the login particulars of his above said bank account. Accused No.2 had hacked into the said NRI account of the complainant by using the login particulars furnished by Cw.2 and got transferred Rs.4 Lakhs illegally, of which Rs.2 Lakhs was given credit to the account No.627701511410 of accused No.4 in ICICI Bank, Vivekananda Road Branch, Kolkata and rest of Rs.2 Lakhs to the account No.054001501701 of accused No.5 maintained at ICICI Bank, Prince Anwar Shah Road Branch, Kolkata. Accused No.3 has arranged to withdraw the said amount through accused Nos.4 and 5 and shared the amount amongest the accused persons and caused wrongful loss to Cw.2 and thereby committed the offences punishable 4 CC NO.37986/2010 u/Sec.66(C) and 66(D) of the Information Technology Act 2008 and Section 417 r/w 34 of IPC. Hence, the accusation.
3. Cognizance of the offences was taken and the presence of the accused Nos.1 and 2 was secured and subsequently they were released on bail. Case against the accused Nos.3 to 5 was split up.
4. Copies of the prosecution papers were furnished to the accused as contemplated u/Sec.207 of Cr.P.C. Charge was framed for the said offences, which was read over and explained to accused. Accused had denied the charge levelled against them and claimed to be tried.
5. To bring home the guilt of the accused, the prosecution had examined two witnesses as Pws.1 and 2 and got marked documents Ex.P1 to Ex.P96 and MOs.1 to 9 and closed its side. Thereafter, the statement of the accused u/Sec.313 of Cr.P.C. was recorded. On behalf of the accused no witness was examined and no document was marked. 5 CC NO.37986/2010
6. I have heard the arguments of both sides and perused the records.
7. The following points arise for my consideration are:-
1. Whether the prosecution proves beyond all reasonable doubt that, the accused Nos.1 and 2 have committed the offences punishable 66(C),66(D) of Information Technology Act 2008 and Section 417 r/w 34 of IPC
2. What Order ?
8. My findings to the above Points are as follows:-
Point No.1:- In the Negative.
Point No.2:- As per the final order:
for the following:-
REASONS Point No.1:-
9. In order to establish its case, the prosecution had examined two witnesses as Pws.1 and 2 and got marked Ex.P1 to Ex.P96 and MOs.1 to 9 during the trial.
6 CC NO.37986/2010
10. Pw.1 was working as Sub-Divisional Engineer in BSNL. He has deposed that the Cyber Crime Police requested him to furnish the details of physical address of IP No.117.197.22-124 and who has operated the said IP number on 15/04/2009 between 01-52-24 hours and accordingly he found that a person by name Rekha Dingra has operated from the above said IP address during the aforesaid period from phone No.2362122 of Jhansi(U.P.)
11. It is elicited in the cross-examination of Pw.1 that "It is true to suggest that the aforesaid IP address is not a permanent address and it may change at any time. It is true to suggest that the same IP address may be allotted to some one else if it is free".
12. Pw.2 is the Investigating Officer who had received the complaint and conducted the investigation. Pw.2 had deposed the role played by her during the investigation.
7 CC NO.37986/2010
13. It is elicited in the cross-examination of Pw.2 that "It is true that as per the allegations made in complaint and contents of the FIR, one Subratho Mukherjee and Sanjay Singh are the beneficiaries".
"It is true to suggest that since even to this day we are able to collect any materials against aforesaid two persons, hence we have not filed charge sheet against them so far. It is true to suggest that in the instant case there is no direct transaction in between the account of the victim and the account of accused No.1. It is true that through the IP address of accused No.1, no transactions have been taken place.
"It is true that in FIR we have not mentioned the reason for delay in lodging the complaint. It is true that in the instant case the name of the victim is Chivakula Subramanyam. It is true that throughout the investigation we have not examined 8 CC NO.37986/2010 the aforesaid C.Subramanyam and recorded his statement.
"It is true to suggest that the phishing e-mail IP mentioned in Ex.P.12 is different from the transaction IP address. It is true that throughout the investigation I have not seized any incriminating materials from the possession of accused No.1".
"It is true that out of the six IP addresses shown in Ex.P.8, four IP addresses are belonging to USA". "Though I tried to get details about those four IP addresses, but I could not succeed as there was no proper response from the other side".
"It is true that the contents of Ex.P.11 are not pertaining to accused No.1. It is true that the IP physical addresses mentioned in Ex.P.1 is belonging to one Rekha Dhingra. I have not examined the said lady and not recorded her statement. I have not tried to ascertain the nature of Internet service taken by Rekha Dhingra.9 CC NO.37986/2010
"It is true that Ex.P.16 IP address doesn't pertains to accused No.1. It is true to suggest that documents at Ex.P.20 to 24, 28 & 29 are not pertaining to accused No.1. It is true that they are belonging to beneficiaries. It is true that Ex.P.30 to 34 documents are also not pertaining to accused No.1. It is true that Ex.P.39 is also not pertaining to accused No.1. It is true to suggest that the amount mentioned in Ex.P.65 pay slips doesn't match with the amount mentioned in the complaint. It is true that Ex.P.68 to 70 doesn't pertain to accused No.1".
"It is elicited in the cross-examination of Pw.2 the learned Counsel for accused No.2 that "Complainant has not made any specific allegations against the accused No.2. It is true that without conducting the Mahazar I have recorded articles from accused No.2 and subjected them through PF No.9/2010".10 CC NO.37986/2010
14. The question that arises for consideration is whether the evidence on record is sufficient to bring home the guilt of the accused. The answer to this question is in the negative for the following reasons. The case of the prosecution suffers from fundamental infirmities which cannot be cured.
15. The alleged offences was committed on 17th and 18th of April 2009. Complainant had lodged the complaint Ex.P2 on 22/04/2009. The delay in lodging the complaint before the police remains unexplained. It is seen that complainant Prakash Devulapalli was authorized by Cw.2 Chivakule Subramanyam to lodge the complaint on his behalf as per Ex.P4. Cw.1 who had lodged the complaint regarding phishing attack into Cw.2's ICICI Bank account has not been examined by the prosecution. Similarly Cw.2 the victim and it is from his ICICI Bank account illegally money was transferred who had authorized Cw.1 to lodge the complaint has not been examined by the prosecution. It is only on 11 CC NO.37986/2010 the basis of complaint lodged by Cw.1 the case was registered. The non-examination of star witnesses Cws.1 and 2 is fatal to the case of the prosecution.
16. The prosecution has not examined the seizure panchas Cws.5 and 6. There is no evidence to prove that the HCL Laptop and ICICI Bank pay-in-slips were seized by the prosecution under Ex.P72 Mahazar. There is no evidence to prove that the said HCL Laptop and ICICI Bank pay slips were recovered from the possession of accused. The link connecting the accused with the prosecution is missing.
17. It is the case of the prosecution that on 17th and 18th of April 2009 there were some illegal transactions in the account of Mr.Chivakule Subramanyam without his knowledge transferring funds amounting to Rs.4 Lakhs to two accounts of Kolkata branch of ICICI Bank and details of beneficiaries are 1) Subrato Mukherjee ICICI Bank 12 CC NO.37986/2010 account No.627701511410 and Sanjay Singh account No.054001501701 (accused Nos.4 and 5). Further as per the evidence of Pw.1 one Rekha Dingra has operated the said IP address during the relevant period from phone No.2362122 of Jhansi. The said Rekha Dingra has not even made as a witness in the charge sheet by the prosecution. When accused No.1 has not operated the said IP address during the relevant period, it is not known what is the role played by accused no.1 and the accusation made against the accused No.1 is not substantiated by the prosecution. Pw.2 Investigating Officer has deposed that she has sought information from Axis Bank, where the beneficiaries have withdrawn the money. The said Axis Bank authorities have not given the details. The investigation conducted by the prosecution appears to be defective investigation. There is no evidence that there is contact between the accused persons and the absconding accused Nos.4 and 5 Mr.Subrato Mukherjee 13 CC NO.37986/2010 and Sanjay Singh who are said to be beneficiaries and sharing of money. The prosecution has failed to prove that there is transaction between the alleged beneficiaries and accused Nos.1 and 2.
18. Pw.2 had admitted in the cross-examination that there is no direct transaction between the account of accused No.1 and the account of the victim and through the IP address of the accused No.1, no transaction has taken place. Pw.2 had further admitted that the phishing email IP address mentioned in Ex.P12 given by BSNL is different from the IP address sought by Investigating Officer and she could not trace the four transactions took place in USA, since she could not get the details and there was no proper response from the other side. The prosecution has not made as a witness the said Rekha Dingra nor examined her nor recorded her statement. It creates a doubt about genuineness of the case of the prosecution.
14 CC NO.37986/2010
19. It is pertinent to note that several questions have been sent to Truth Lab to ascertain the truth of the case of the prosecution. In the report Ex.P83 submitted by the Truth Lab it is stated that
b) The laptop does not contain any information related to account No.627701511410 belonging to Suborto Mukherjee".
c) The laptop does not contain any information related to account No.054001501701 belonging to Sanjay Singh.
2) The laptop does not contain any phishing mail pertaining to ICICI Bank.
6. No information regarding Nikhil Dingra and Saupam Das could be found.
7. No chat/email communication between the accused Saupam Das and Nikhil Dingra could be found.
8. No details regarding frequently accessed email IPs would be found.
15 CC NO.37986/2010
9. No images or any other data pertaining to fraudulent transactions could be found.
20. In fact no phishing email had been sent from accused No.2's IP address. On the basis of verbal statement made by accused No.1, the complainant police had arrested the accused No.2. Similarly there is no evidence in the above case as to the contact between the accused No.2 and the alleged absconding accused persons Suborto Mukherjee and Sanjay Singh. Pw.2 had stated in the cross- examination that there is no direct transaction between the account of accused No.2 and the account of victim and through the IP address of accused No.2 no transactions has taken place. Mere deposit of amount of Rs.48,725/- on 23/12/2008 and Rs.37,000/- on 19/05/2009 by the accused No.2 from the ICICI Bank Kolkata in the account of accused No.1 at Jhansi Branch will not prove that illegal transaction has taken place. The allegations made by prosecution against the accused Nos.1 and 2 is 16 CC NO.37986/2010 not at all supported by the report of Truth Lab. The non-examination of Bank witnesses is fatal to the case of the prosecution. The prosecution has not conducted any investigation pertaining to beneficiaries account.
21. Cws.1 and 2 are not interested in prosecuting the accused persons. No prosecution witnesses except Pws.1 and 2 are interested to support the case of the prosecution. On the basis of evidence of Pws.1 and 2, it is not possible to prove the case of the prosecution. There is no scope to discuss the evidence for want of proof of facts. It appears that nobody is interested in prosecuting the accused. Viewed from any angle the prosecution had failed to prove the guilt of the accused persons. Accordingly, Point No.1 is answered in the Negative.
22. Point No.2:-
In the result, I proceed to pass the following:17 CC NO.37986/2010
O R D E R Acting U/s.248(1) Cr.P.C. I hold that, accused Nos.1 and 2 are not found guilty of having committed the offences punishable U/s.66(C), 66(D) of Information Technology Act 2008 and Section 417 r/w 34 of IPC.
Accused Nos.1 and 2 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.1 and 2 and their surety stands cancelled.
Preserve the original file since split up case is pending against the accused Nos.3 to 5.
(Dictated to the stenographer, transcript thereof, computerized revised and then corrected by me and then pronounced in open court on this the 6th day of March 2015).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.18 CC NO.37986/2010
ANNEXURE List of witnesses on behalf of prosecution:
PW.1 Kallappa Ramachandrappa Idly Pw.2 Smt.Savitha.S
List of documents on behalf of prosecution:
Ex.P1 E-mail
Ex.P2 Copy of Complaint
Ex.P3 Copy of FIR
Ex.P4 Letter by Cw.1
Ex.P5 Copy of passport
Ex.P6 Letter addressed to ICICI Bank
Ex.P7 Printing e-mail
Ex.P8 IP details
Ex.P9 Phishing e-mail IP details by ICICI
Bank
Ex.P10 Phishing e-mail IP sketch
Ex.P11 Letter by Pw.2 to Manager
Ex.P11(a) Signature of Pw.2
Ex.P12 Request letter
Ex.P12(a) Signature of Pw.2
Ex.P13&14 Covering letters
Ex.P15 to 17 Informations
Ex.P18 Letter by Pw.2
Ex.P19 ATM withdrawal details
Ex.P20 Reply from Axis Bank
Ex.P21 to 23 Details
Ex.P24 Request letter
Ex.P25 Covering letter
Ex.P26 E-mails
Ex.P27 Covering letter
Ex.P28&29 Cheques
Ex.P30 Xerox copy of reminder
Ex.P31 Covering letter
19 CC NO.37986/2010
Ex.P32&33 Cheques
Ex.P34 Xerox Copy of cheque
Ex.P35 Letter
Ex.P36 E-mail
Ex.P37 Letter
Ex.P38 E-mail
Ex.P39 Relevant document
Ex.P40 Phising mail of ICICI Bank
Ex.P41 Domain name lookup copy
Ex.P42 Covering letter of Idea Cellular Ltd.,
Ex.P43 Call details
Ex.P44 CA Form
Ex.P45&46 Hard copy of E-mails
Ex.P47 Copy of reply
Ex.P48 Request letter
Ex.P48(a) Signature of Pw.2
Ex.P49 Request letter
Ex.P49(a) Signature of Pw.2
Ex.P50 Reply
Ex.P51 Details
Ex.P52&53 Copy of prepaid application forms Ex.P54 Reply Ex.P55 Letter Ex.P56 Letter Ex.P56(a) Signature of Pw.2 Ex.P57 Letter Ex.P58 Reply Ex.P59 CA Form Ex.P60 CDR details Ex.P61 Reply given Ex.P62 Covering letter Ex.P63 Copy of 3 PF Ex.P64 Mahazars Ex.P65 Letter Ex.P66 Document Ex.P67 Hard copy of E-mail Ex.P68 Requisition to the Manager Ex.P69 Covering letter Ex.P70 Election ID of Roopa Das 20 CC NO.37986/2010 Ex.P71 Voluntary Statement of A-2 Ex.P72 Seizure Mahazar Ex.P72(a) Signature of Pw.2 Ex.P73&74 ICICI pay-in-slips Ex.P75 Document sent by Redifffmail.com Ex.P76&77 Letters Ex.P78 Bank Statements Ex.P79 Covering letter to the truth labs Ex.P80 Covering letter of ICICI Bank Ex.P81&82 Cash slips Ex.P83 Truth Lab Report Ex.P84 Reply from Axis Bank Ex.P85 Bank Statements Ex.P86&87 Letters Ex.P88&89 E-mails Ex.P90 Cash pay-in-slips Ex.P91 Scanned copies of pay-in-slips Ex.P92 Truth Lab Report Ex.P93 E-mail inbox details Ex.P94 Covering letter Ex.P95 Xerox copies of report Ex.P96 E-mail dtd.15/07/2010 Material Objects Produced:-
MO.1 HCL Laptop
MOs.2 to 5 4 mobile hand sets
MO.6 Black weather walllet
MO.7 Nokia charger
MO.8 Bag
MO.9 Cash
Witnesses examined on behalf of the defence,
documents marked:- NIL.
I Addl.CMM, Bangalore.
21 CC NO.37986/2010
06/03/2015
State by Sr.APP
Accused Nos.1&2 C/B
For Judgment.
(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 Nos.1 and 2 are not found guilty of having committed the offences punishable U/s.66(C), 66(D) of Information Technology Act 2008 and Section 417 r/w 34 of IPC. Accused Nos.1 and 2 are hereby acquitted of the offences alleged against them and they are set at liberty forthwith. The bail bonds executed by the accused Nos.1 and 2 and their surety stands cancelled. Preserve the original file since split up case is pending against the accused Nos.3 to 5.
I Addl.CMM, Bangalore.22 CC NO.37986/2010 23 CC NO.37986/2010
Accused Nos.1 and 2 along with others in furtherance of common intention to cheat the customers of ICICI Bank falsely fabricated a template of ICICI Bank with an intention to send phishing mails to obtain login details. Cw.2 is having his Bank account in ICICI Bank NRI Account No.0002010814477 at M.G.Road Branch, Bengaluru.
Accused No.1 a Professional Cyber Criminal has sent a phishing e-mail inducing the complainant for providing login particulars by personating the Bank under the pretext of updating the account. Being induced by the phishing e-mail sent by the accused 24 CC NO.37986/2010 No.1, Cw.2 has furnished the login particulars of his above said bank account. Accused No.2 had hacked into the said NRI account of the complainant by using the login particulars furnished by Cw.2 and got transferred Rs.4 Lakhs illegally, of which Rs.2 Lakhs was given credit to the account No.627701511410 of accused No.4 in ICICI Bank, Vivekananda Road Branch, Kolkata and rest of Rs.2 Lakhs to the account No.054001501701 of accused No.5 maintained at ICICI Bank, Prince Anwar Shah Road Branch, Kolkata. Accused No.3 has arranged to withdraw the said amount through accused Nos.4 and 5 and shared the amount amongest the accused persons and caused wrongful loss to Cw.2 and thereby committed the offences punishable u/Sec.66(C) and 66(D) of the Information Technology Act 2008 and Section 417 r/w 34 of IPC.