Bangalore District Court
Account Is Not Accused Nos.2 vs Argued That Accused No.2 Has Nothing To ... on 28 January, 2016
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 28th day of January 2016.
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. : C.C.No.11506/2009
Date of Offence : During the year 2009
Name of complainant : State by Cyber Crime
Police Station
Name of Accused : 1.Harish - Split up
2.Mehul Kumar Mohan Bai
Patel,
Mohan Bai Patel,
aged 26 years,
No.C/454, Hari Om Nagar,
Gujarat Housing Board,
Pandesara, Surat 394 221
3.Kamlesh Bhai Limbachina
S/o Ramesh Bai, aged 39
years, No.B-3, Sahayog
Apartment, Anand Mohal
Road, Adjan, Surat 09
4.Dipak Kanti Bai Bhagat,
S/o Kanti Dhangi, Bai
Bhagat, aged 25 years,
No.1/1586, Ganganath
Mahadevwadi, Opp.Prakash
Bakery, near Police
Ground, Rudarpura,
Surat 395 001
2 C.C.No.11506/2009
Offence complained : U/s.66 of I.T.Act, 2000
& Sec.420 r/w 34 of IPC.
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 28-1-2016.
- - -
JUDGMENT
The Deputy Superintendent of Police, Cyber Crime Police Station, C.O.D. Bengaluru has filed the charge sheet against the accused Nos.1 to 4 alleging that, they had committed the offences punishable under Sections 66 of I.T. Act, 2000 and 420 r/w 34 of IPC.
2. The case of the prosecution in brief is that, accused No.1 having knowledge of computers and hacking of bank accounts contacted accused No.3 and both of them together planned to hack the bank account of C.W.1. Accused Nos.1 and 3 contacted accused No.4 and told him about the hacking of C.W.1's back account. Accused No.4 in order to 3 C.C.No.11506/2009 execute the criminal act contacted accused No.2 and told that he knows a friend who can transfer the amount from unknown account to the known account and he will give them 5% of the money received, so they can share themselves. Thereafter accused No.2 expressed his willingness and told that he himself is having HDFC Bank account at Surat Ring Road, Gujarath. To complete this criminal act of hacking and cheating, accused No.2 has given his bank account details to accused Nos.3 and 4. In connivance with accused persons, accused No.1 has transferred an amount of Rs.1,91,000/- from the C.W.1's bank account to the account of accused No.2 by hacking into C.W.1's bank account and accused No.2 has withdrawn the amount by giving cheque at the branch and withdrawn the amount with the intention to share the commission amount given by accused No.1 and caused wrongful loss to C.W.1 and made wrongful gain and thereby committed the 4 C.C.No.11506/2009 offences under Sections 66 of I.T. Act, 2000 and 420 r/w 34 of IPC.
3. Cognizance of the offences was taken and the presence of the accused Nos.2 to 4 were secured and subsequently they were released on bail.
4. Copies of the prosecution papers were furnished to the accused Nos.2 to 4 as contemplated under Section 207 of Cr.P.C. Charge was framed for the said offences, which was read over and explained to accused Nos.2 to 4. Accused Nos.2 to 4 had denied the charge levelled against them and claimed to be tried.
5. To bring home the guilt of the accused Nos.2 to 4, the prosecution had examined in all three witnesses as P.Ws.1 to 3 and got marked Exs.P1 to P22 and closed its side. Thereafter, the statement of the accused Nos.2 to 4 under Section 313 of Cr.P.C. was recorded. On behalf of the accused Nos.2 to 4 no witness was examined and no document was marked.
5 C.C.No.11506/2009
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.2 to 4 have committed the offences punishable under Sections 66 of I.T.ACt, 2000 and 420 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
9.Point No.1:-
a. In order to establish its case the prosecution had in all examined 3 witnesses as Pws.1 to 3 and got marked Ex.P1 to 22 during the trial.6 C.C.No.11506/2009
b. P.W.1 had deposed about the producing the call details Ex.P3 and address proof details of accused No.1 as per Ex.P3 and P4. c. P.W.2 the Manager of Risk Control Unit of HDFC Bank had deposed that as per three request letters from Cyber Crime Police Station to furnish the account details of C.Ws.1, 2 and bank account of accused No.2 Mehul Kumar he provided the same. He had also spoken about providing the IP number details and other details concerned to the case. It is elicited in the cross-examination of P.W.2 that:
"I cannot say as to from which place the account of the complainant is operated and through which computer. It is true that as per the bank statements the amount from the complainant account is first transferred to the account of Anish. After that the amount is transferred to the account of accused No.3 Mehul Kumar".7 C.C.No.11506/2009
d. P.W.3 the Investigating officer had deposed that on 31-1-2008 at 12-30 p.m., when he was in Cyber Crime Police Station, he received the written complaint as per Ex.P7 from C.W.1 and on the basis of the said written complaint he registered the case the case in Cr.No.8/2008 and sent FIR. P.W.3 had deposed about the role played by him during the investigation and after completion of investigation he had filed charge sheet against the accused. After the examination in chief of P.W.3 in spite of several opportunities and in spite of issuing summons several times P.W.3 did not attend the Court and his evidence came to be discarded on 9-3-2015, as he did not tender himself for cross-examination.
10. It is settled position of law that any amount of evidence tendered in examination in chief cannot be looked into unless the same is subject to cross-examination.
8 C.C.No.11506/2009
In support of this settled position of law, I would like to rely upon the ruling reported in AIR 1989 SUPREME COURT 1141 (Gopal Saran v/s Satyanarayan) wherein the Hon'ble Supreme Court of India, held the dictum thus:-
"(A) Evidence Act (1872), Ss.137 and 138 - Party not subjecting himself to cross-examination in spite of order of Court -
It is not safe to rely on examination-in-chief".
Hence the evidence of P.W.3 is of no value for the case of the prosecution.
11. The question that arises for consideration is whether the evidence on record is sufficient to bring home the guilt of the accused persons.
12. Though the Investigation Officer was successful in detecting the Cyber Crime, by apprehending the accused Nos.2 to 4, the case of the prosecution suffers from incurable infirmities.
13. The complainant C.W.1 in his complaint Ex.P7 states that the hacked the amount of 9 C.C.No.11506/2009 Rs.1,91,000/- was 1st transferred to C.W.2 Mr.Aneesh Joshi's account.
29th Jan.2008
1) Rs.1,91,000/- transferred from my account HDFC A/c No.01071050151449) to the Bangalore HDFC A/c of Mr.Anish Joshi (A/c No.00531050195475)
2) Rs.1,91,000/- transferred from Anish Joshi's A/c to Mehul Kumar Mohanbhai Patel's HDFC Account in Surat (A/c No.02512850000801) Based on the statement we received from HDFC, Mehulkumar's account shows a balance of Rs.3,50,879/- as of now.
As per HDFC Bank (Koramangala branch), the above mentioned account numbers have been frozen request you to cross verify and confirm the same with the Bank authorities.
14. The Deputy Superintendent of Police, Cyber Crime Police Station had filed charge sheet against four accused persons. Accused No.1 is not traced so far. P.W.2 Aneesh Joshi is the first beneficiary in this case. Accused No.2 is the second beneficiary. The charge against accused Nos.2 to 4 is under 10 C.C.No.11506/2009 Sections 66 of I.T. Act and 420 r/w 34 of IPC. The prosecution has not examined C.W.2. Ex.P16 is the police notice issued to C.W.2 Aneesh Joshi. Through Ex.P17 the Company M/s Venture Soft Tech India Pvt. Ltd., provides the details of C.W.2. C.W.2 is professionally qualified person. Accused No.2 has withdrawn the deposited money and puts the amount back. Thereafter, accused No.2's account has been frozen. Whatever the amount that has been hacked came back to C.W.1's account. The complainant C.W.1 got released the said amount from the Court.
15. As per Ex.P13 the person who hacked the complainant's account is not accused Nos.2, 3 and 4 but somebody else. The Investigating Officer has not traced the I.P. address. The counsel for accused argued that accused No.2 has nothing to do with this case. P.W.2 had deposed that password will be initially with the bank. The complainant's amount is in the custody of bank. Accused No.2 immediately deposited the amount after he came to 11 C.C.No.11506/2009 know of the said fact. That itself shows that accused No.2 does not intend to commit any offence. The star witness C.W.1 has not been examined by the prosecution. The I.P. address is not traced. Accused No.1 has not been arrested and his whereabouts is not known. There is no evidence that accused No.2 has used the computer, accessed to computer network and hacked the account. There is no material to establish the hacking of account of complainant by the accused.
16. In order to sustain a conviction under Section 420 of IPC, the prosecution has to establish that the accused persons had intentionally deceived the complainant and induced him to part with money and caused loss. What is an inducement made by accused persons is not known. What is the delivery of property by complainant to accused persons is not known. Similarly the prosecution has to prove that accused without permission of the owner or any other person in 12 C.C.No.11506/2009 charge of a computer, computer system or computer network violated any of the conditions mentioned in Clause (a) to (j) of Section 43, to sustain the charge under Section 66 of Information Technology Act. Under what category Clauses (a) to (j) of Section 43 of Information Technology Act accused persons had committed the offences is not mentioned by the prosecution. There is no iota of evidence to prove the ingredients of the alleged offences. Section 43 of Information Technology Act is applicable if any person uses the computer. In this case, the IP address is not traced. Even if traced as per Ex.P13 it is from U.S. There is no material that accused No.2 has used the computer or accused No.2 used computer network and downloaded. There is nothing to establish that accused No.2 has hacked the account of the complainant.
17. The star witness C.W.1 who is the first informant and aggrieved has not been examined by the prosecution. It is only on the basis of the 13 C.C.No.11506/2009 complaint lodged by C.W.1, the case was registered. It appears that C.W.1 had obtained the hacked amount and he is not interested in prosecuting the accused persons. The prosecution has also not examined C.Ws.2 and 4. The non-examination of C.Ws.1, 2 and 4 is fatal to the case of the prosecution. The evidence of P.W.3 is discarded.
18. There is no scope to discuss the evidence for want of proof of facts. There exists no iota of evidence to establish the alleged incident. On the basis of evidence of P.Ws.1 and 2, it is not possible to prove the case of the prosecution. The prosecution had failed to establish its case. Not much discussion is found necessary since there is no incriminating evidence against accused No.2, 3 and 4. The foundation of the case of the prosecution is found missing. In the absence of connecting link pointing out as to who had committed the incriminating acts of commission or omission, it is not possible to pass an order of 14 C.C.No.11506/2009 conviction. In the absence of cogent and reliable evidence regarding the link of the accused with the alleged crime, the benefit of doubt should tilt in favour of the accused. The evidence on record is insufficient to prove the guilt of the accused persons. The prosecution has failed to establish that the accused in furtherance of common intention committed the offences under Section 420 r/w 34 of IPC and Section 66 of Information Technology Act. Accordingly, point No.1 is answered in the Negative.
19. Point No.2:-
In the result, I proceed to pass the following:
O R D E R Acting under Section 248(1) Cr.P.C. I hold that, accused Nos.2 to 4 are not found guilty of having committed the offences punishable under Sections 66 of I.T.Act, 2000 and 420 r/w 34 of IPC.15 C.C.No.11506/2009
Accused Nos.2 to 4 are hereby acquitted of the offence alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.2 to 4 and their sureties stand cancelled.
Preserve the original file since split up case is pending against the accused No.1.
(Dictated to the stenographer directly on computer, typed by her, revised and then corrected by me and then pronounced in open court on this the 28th day of January 2016).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses on behalf of prosecution:
P.W.1, Shivaraj, P.W.2, Madhu Srinivas, P.W.3, A.E.Vasudeva Rao;
List of documents on behalf of prosecution:
Ex.P1, Letter,
Ex.P2, Letter,
Ex.P3, Call details containing 14 sheets
in respect of mobile number,
Ex.P4, Name and address regarding Ex.P2,
Ex.P5, Letter,
Ex.P6, Covering letter,
Ex.P6(a), Signature of P.W.2,
16 C.C.No.11506/2009
Ex.P6(b), Details containing name and address
with contact number of the
complainant,
Ex.P6(c), IP details in 3 sheets,
Ex.P6(1), Important transactions taken from the
account of complainant,
Ex.6(d), Copy of account extract of complainant
firm,
Ex.P6(d)(I), Signature of P.W.2, Ex.P7, Written complaint, Ex.P7(a), Signature of P.W.3, Ex.P8, FIR, Ex.P8(a), Signature of P.W.3, Ex.P9, Fishing mail from the complainant, Ex.P10, Letter dated 7-2-2008, Ex.P10(a), Signature of P.W.3, Ex.P11, Copy of the requisition letter to HDFC Bank, Ex.P11(a), Signature of P.W.3, Ex.P12, Letter addressed to Vodafone (P) Ltd., Ex.P12(a), Signature of P.W.3, Ex.P13, Reply to Ex.P12, Ex.P14, Letter dated 1-2-2008, Ex.P14(a), Signature of P.W.3, Ex.P15, Reply to Ex.P14, Ex.P15(a) to Ex.P15(d), Annexures, Ex.P16, Letter dated 17-3-2008, Ex.P16(a), Signature of P.W.3, Ex.P17, Covering letter, Ex.P17(a) to Ex.P17(d), Annexures, Ex.P18, Letter addressed to Nodal Officer, Ex.P18(a), Signature of P.W.3, Ex.P19, Covering letter, Ex.P19(a) to Ex.P19(h), 8 sheets annexed to Ex.P19, Ex.P20, Covering letter, Ex.P21 & Ex.P22, 2 Cheques;17 C.C.No.11506/2009
Material Objects Produced:- Nil Witnesses examined on behalf of the defence, documents marked:- NIL.
I Addl.CMM, Bangalore.18 C.C.No.11506/2009
(Judgment pronounced in the Open Court, vide separate order) O R D E R Acting under Section 248(1) Cr.P.C. I hold that, accused Nos.2 to 4 are not found guilty of having committed the offences punishable under Sections 66 of I.T.Act, 2000 and 420 r/w 34 of IPC.
Accused Nos.2 to 4 are hereby acquitted of the offence alleged against them and they are set at liberty forthwith.
The bail bonds executed by the accused Nos.2 to 4 and their sureties stand cancelled.
Preserve the original file since split up case is pending against the accused No.1.
I Addl. CMM, Bangalore.19 C.C.No.11506/2009