Punjab-Haryana High Court
Sumit Nandwani vs State Of Haryana on 3 July, 2024
Author: Anoop Chitkara
Bench: Anoop Chitkara
Neutral Citation No:=2024:PHHC:082024
CRM-M-22266-2024
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRM-M-22266-2024
Date of Decision: 03.07.2024
SUMIT NANDWANI ...Pe oner
Versus
STATE OF HARYANA ...Respondent
CORAM: HON'BLE MR. JUSTICE ANOOP CHITKARA
Present: Mr. Vikas Arora, Advocate for the pe oner.
Mr. Rajat Gautam, Addl. A.G., Haryana (through V.C.).
Mr. Sandeep Lather, Advocate for the complainant.
Mr. Satya Pal Jain, Addi onal Solicitor General of India with
Ms. Meghna Malik, Central Government Counsel for UOI.
****
ANOOP CHITKARA, J.
FIR No. Dated Police Sta on Sec ons
36 16.12.2023 Cyber Crime, Hisar, Haryana 420, 201, 120-B IPC
1. On 29 May 2024, this Court had passed a detailed order and also arraigned the Union of India, Ministry of Telecommunica on, Government of India through Secretary and added it as party respondent No.2 in the pe on, and the maBer was posted immediately aCer vaca ons, i.e., for 01-Jul-2024. The order dated 29-May-2024, as far as it relates to the Union of India, shall be read as part and parcel of this order.
2. However, in the mean me, the government has no fied the Telecommunica ons Act, 2023, which came into force on 26 Jun 2024.
3. Given this, no response is required from the Union of India.
4. Cybercrime has been affec ng people across the Na on, irrespec ve of religion, region, educa on, or class. Newspapers, Magazines, YouTube channels, and social media are brimming with the ordeals of an uncountable number of innocent vic ms of cybercrime, and these reports cannot be brushed aside as agendas. Reference made to paragraphs 6 and 7 of the previous order dated 29 May 2024 which reads as follows:-
11 of 9 ::: Downloaded on - 21-07-2024 07:16:32 ::: Neutral Citation No:=2024:PHHC:082024 CRM-M-22266-2024 "6. In India, ci zens contend with the pervasive threat of cybercrime, leading to a heightened sense of vigilance and cau on. This apprehension has led majority of people to refrain from answering calls from unfamiliar numbers, even when such communica on may be necessary. The prevailing fear extends to the use of internet and mobile banking services, as individuals seek to safeguard themselves against poten al cyber fraud. Consequently, this apprehension poses challenges as individuals strive to keep pace with the rapid advancements in technology and global connec vity.
Complica ng ma$ers further is the reality that proficiency in technical knowledge or academic a$ainment does not necessarily confer Immunity against cyber threats, as cybercriminals o&en possess superior skills and tac cs. Moreover, cyber-crime being a faceless borderless ac vity with mul ple jurisdic onal challenges, and the dearth of adequately trained and skilled inves gators exacerbates the situa on, emboldening these adept predators to exploit any opportunity for financial gain through extor on, manipula on, or thugee.
7. Addi onally, cybercriminal ac vi es have led to a global tarnishing of India's reputa on, par cularly through fraudulent opera ons conducted from Indian soil, targe ng people overseas. These encompass a range of scams such as counterfeit tech support services, fraudulent Amazon and gi& card schemes, insurance fraud, courier frauds, and the unlawful conversion of cyber proceeds into cryptocurrencies like Bitcoin. Notably, a considerable propor on of these illicit endeavours are orchestrated via mobile devices. Following the exploita on of a certain number of vic ms, perpetrators rou nely discard or deac vate their SIM cards, acquiring new ones to perpetuate their nefarious deeds. Disturbingly, reports suggest that these actors obtain prepaid SIM cards under not only their own iden es but also those of unwi1ng individuals, o&en through decei2ul means or even by remunera ng for SIM card usage. Consequently, innocent 2 2 of 9 ::: Downloaded on - 21-07-2024 07:16:33 ::: Neutral Citation No:=2024:PHHC:082024 CRM-M-22266-2024 individuals whose iden es have been impersonated for obtaining these prepaid SIM cards frequently find themselves implicated as primary suspects. These innocent individuals, largely oblivious to their involvement, are confronted with accusa ons of complicity in financial crimes, notwithstanding their lack of ac vity associated with the phone numbers registered under their names. This dual predicament presents a considerable challenge whereby vic ms suffer financial losses while innocent par es endure unwarranted scru ny and suspicion due to the unauthorized registra on of SIM cards in their names."
5. Leaving uncovered milk in a caBery and threatening cats with a cage will only boil the people's rage.
6. Let the Secretary of Telecommunica on, Government of India, deliberate on the issue of cyber-crime that takes place by using pre-paid SIM cards and also by fraudulent marke ng companies by using mobiles and landlines, fraudulent authoriza on of OTP through voice using VPN, etc., and submit a report containing steps and sugges ons to eliminate or at least limit the SIM and phone-based cyber-crimes, to the Secretary Home, Government of India, with a copy to the Cabinet Secretary, Government of India, posi vely by 31 July 2024.
7. The pe oner incarcerated in the FIR cap oned above had come up before this Court under Sec on 439 CrPC, 1973, seeking regular bail.
8. In paragraph 15 of the bail pe on, the accused declares that he has no criminal antecedents.
9. The pe oner's counsel prays for bail and does not object to imposing any stringent condi ons. The pe oner contends that the pe oner is en tled to bail just on the grounds of massive pre-trial custody, viz-a-viz the punishment provided in the statute, and further pre-trial incarcera on would cause an irreversible injus ce to the pe oner and his family.
10. The State opposes bail.
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11. The allega ons made in the complaint and the inves ga on conducted so far are men oned in the reply dated 14 May 2024, filed by Dr. Rajesh Mohan, IPS, Assistant Superintendent of Police, Hisar, Haryana, the relevant por on of which reads as follows:
"2. That the brief facts of the case are that one applica on was received on 30.08.2023 on the NCCRP Portal. Accordingly, statement of Rakesh was recorded who revealed that on 27.08.2023, he got a message on WhatsApp from No. 7085578438 on his WhatsApp No. 99915xxxxx sta ng to earn money while si1ng at home. Accordingly, he had a chat with subscriber on that number. He asked him to create a telegram account. Following his instruc ons, he created his telegram account in the name of @rakesh_sheokand. Therea&er, the said person sent a link kiwi-airfare-site.com on his telegram account. He clicked that link and the site got opened and he entered his mobile No. 99915xxxxx and got himself registered. The site asked him to complete the task and joined him in the Kiwi group 710. Almost 28 persons were members of this group. The name of the owner of the telegram was @ Mah_verma15. On 28.07.2023, they asked him to transfer Rs.10,000/- and accordingly he transferred Rs.10,000/- from his account No. 661601700XXX of ICICI Bank in the account No. 724705500132 of ICICI Bank. Therea&er, the accused transferred Rs.10,900/- and bonus of Rs.6800/- in his account. In the ini al transac on, they repaid the amount to the complainant and therefore, he reposed faith in them. Subsequently, they asked him to deposit almost Rs.8,09,469/- by different transac ons, but did not return the same to him. He kept on calling the mobile numbers, but did not get any answer. Therea&er, he realized that he had been defrauded. With these allega ons, he prayed to take legal ac on against the culprits. On this the case FIR No. 36 dated 16.12.2023 under sec ons 420 IPC was registered at Police Sta on Cyber Crime, Hisar.
3. That, inves ga on of the case was carried out by ASI Narender Kumar No. 160/Jind. During the course of inves ga on account numbers 661601700756, 724705500132, 236905500531, 51001513584 of ICICI bank statement and registered mobile numbers in abovemen oned accounts details were possessed by the inves ga ng officer vide separate recovery memo. In furtherance of the course of inves ga on account numbers 65259519937, 41978506746, 31124706662, 33644160446 of SBI statement and registered mobile numbers in the account details were possessed by the inves ga ng officer vide separate recovery memo. Kotak Mahindra Bank account number 8447184043 detail was also taken into possession via mail by the inves ga ng officer. In furtherance of the 4 4 of 9 ::: Downloaded on - 21-07-2024 07:16:33 ::: Neutral Citation No:=2024:PHHC:082024 CRM-M-22266-2024 inves ga on of the case telegram user details i.e. @Mah_verma15 was also taken from the telegram mail ID [email protected] to [email protected]. and from the above record it has been found that mobile number was used in these ID's and telegram was +917024771707 and address used in the above men on ID belongs to Taiwan. In furtherance of the course of inves ga on CAFF ID's of mobile numbers 7024771707 and 8085981505 were also possessed by the inves ga ng officer and from the same it has been found that the above men oned numbers was issued by the present pe oner namely Sumit Nandwani as POS agent from his mobile number 8269997777. It has been also found that mobile numbers 8085981505, 7024777107; whose were used in the offence and same were used in the mobile of IMEI No. 359916108074180 and 351261012698750 on dated 18.07.2023 and 22.07.2023. Further it has been found that the abovemen oned mobile numbers connected with mobile number 7089333888 and same was issued in the name of present pe oner namely Sumit Nandwani. On the basis of documentary evidence present pe oner namely Sumit Nandwani was arrested on 23.01.2024 and he suffered his disclosure statement in which he revealed that mobile numbers 8085981505 and 7024771707 were registered in the name of Anil Manjhi and Shivam Kewat a&er registra on and ac va on, he provided blank SIMs and retained the ac vated numbers and therea&er the said numbers were used to operate the telegram/WhatsApp. In furtherance of his disclosure statement he got recovered two keypad mobiles and from them in one mobile phone mobile numbers 8059881505 and 7024771707 was used. He also got recovered realme C 25 s. In the same it has been found that WhatsApp number 9522110743 was used and from this number he sent mobile numbers 8059881505 and 7024771707 to 8882863343. Screen shot of the same was taken by the inves ga ng officer and taken into possession vide separate recovery memo. Copy of the same is annexed herewith as Annexure R-1. He also got recovered Rs.20,000/- cash who received as commission on pretext of OTP. True translated copy of disclosure statement of present pe oner is annexed herewith as Annexure R-2.
4. That, during the course of inves ga on Anil Manjhi (8059881505) and Shivam Kewat (7024771707) were joined in the inves ga on and they stated that present pe oner gave them blank SIMs. On which sec on 201 IPC was invoked in this case. Mobile realme c 25 s was sent to CFSL for his examina on and report of the same is awaited.
5. That, during the course of inves ga on it has been found that defrauded amount was credited in ICICI account number 5 5 of 9 ::: Downloaded on - 21-07-2024 07:16:33 ::: Neutral Citation No:=2024:PHHC:082024 CRM-M-22266-2024 236905500531 and in the same mobile number 9174488421 was registered in this account number. The aforemen oned number was used in IMEI No. 352336083474530 between 29.08.2023 to 30.08.2023. In furtherance of the inves ga on of the case it has been found that one another mobile number 9650474623 was also used in the above said IMEI number mobile. The above said number was issued on Kuswa's ID.
6. That on dated 11.03.2024, Kuswa was joined in the inves ga on and during the course of inves ga on he was interrogated by the inves ga ng officer and he stated that from him the above said mobile was took by Noor Mohammad on 27.08.2023 and on the above statement co-accused Noor Mohammad, Mukesh Mishra and Dil Bahadur @ Pawan were arrested in this case. They suffered their confessional disclosure statement during their interroga on. Co-accused Noor Mohammad got recovered one mobile phone MI and two cheque books of RBL bank and FINCARE bank and Rs. 10,000/- cash. Co- accused Mukesh Mishra got recovered one mobile phone and Rs.15,000/- cash. Co-accused Dil Bahadur got recovered Rs.15,000/- cash. Sec on 120B IPC was invoked in this case.
7. That, during the course of inves ga on details of mobile number 8882863343 was taken by the inves ga ng officer and from these details it has been found that the aforemen oned mobile number was used by the Parshant Kumar. On dated 21.03.2024, co-accused Parshant was joined in the inves ga on and he suffered his confessional disclosure statement in which he stated he received telegram and WhatsApp OTP from the present pe oner namely Sumit Nandwani and on pretext of this he gave money to the present pe oner. Further he stated that Jai Kumar was also involved with him and co-accused Jai Kumar was also arrested in this case. In furtherance of his disclosure statement co-accused Parshant got recovered one mobile in which he used 8882863343 mobile number and cash Rs. 15,000/-. Co- accused Jai Kumar got recorded his confessional disclosure statement and in furtherance of the same he got recovered Rs. 12,000/- cash.
8. That, therea&er comple ng the inves ga on against present pe oner namely Sumit Nandwani and co-accused Dil Bhadur @ Pawan, Mukesh Mishra, Noor Mohammad inves ga on report was prepared on dated 18.03.2024 under sec on 420, 120B and 201 IPC and same was submi$ed in the learned trial court on dated 19.03.2024. It is submi$ed that vide order dated 04.05.2024 charge has been framed by the learned trial court and the case is fixed on 17.05.2024 for prosecu on evidence. In this case 21 prosecu on witnesses were cited by the inves ga ng officer and no one witness has been examined yet.6
6 of 9 ::: Downloaded on - 21-07-2024 07:16:33 ::: Neutral Citation No:=2024:PHHC:082024 CRM-M-22266-2024 It is further submi$ed that inves ga on is pending in this case yet because Farhan Ansari and others arrest is pending. Copy of custody cer ficate of the present pe oner is annexed herewith as Annexure R-3.
9. That, present pe oner namely Sumit Nandwani was the person who ac vated mobile numbers 8085981505 and 7024771707 being POS agent in the name of Anil Manjhi and Shivam Khewat and therea&er, he provided blank SIMs to the abovesaid subscribers and sold the ac vated numbers to the other accused who used the same to create the telegram account and commit fraud with the complainant like persons. During inves ga on, the inves ga ng officer discovered that co-accused Noor Mohammad, Dil Bahadur and Mukesh Mishra were involved in the conspiracy and thus invoked sec on 120B IPC. It is further submi$ed that online fraud havoc in the society. Everyday innocent persons were falling in such type of trap."
12. As per the reply, the pe oner was arrested on 23 Jan 2024. The inves ga on report was prepared on 18 Mar 2024 under sec ons 420, 120B, and 201 IPC and was filed before the trial Court on 19 Mar 2024. The charges were framed against the pe oner on 04 May 2024, and the case is at the stage of prosecu on evidence. The maximum sentence prescribed under Sec on 420 IPC is seven years; under S. 201, read with 420 IPC, would be one-fourth of seven years; under S. 120-B, read with S. 420, is six months. Given the penal provisions invoked viz-a-viz pre-trial custody of more than five months, and the other factors peculiar to this case, there would be no jus fiability for further pre-trial incarcera on at this stage, subject to the compliance of terms and condi ons men oned in this order.
13. Without commen ng on the merits of the case, in the facts and circumstances peculiar to this case, and for the reasons men oned above, the pe oner makes a case for bail, subject to the terms and condi ons on bail bonds and as men oned in this order.
14. This order shall come into force from the me it is uploaded on the official webpage of this Court.
15. Given above, provided the pe oner is not required in any other case, the pe oner shall be released on bail in the FIR cap oned above, in the following terms:
(a). Pe oner to furnish a personal bond of Rs. Ten thousand (INR 10,000/).7
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(b). To give one surety of Rs. Twenty-five thousand (INR 25,000/-), to the sa sfac on of the Trial Court, and in case of non-availability, to any Court which has been assigned its work, or the nearest Ilaqa Magistrate/duty Magistrate. Before accep ng the surety, the concerned Officer/Court must sa sfy itself that if the accused fails to appear in Court, then such surety can produce the accused before the Court.
(c). The pe oner is to also execute a bond for aBendance in the concerned court(s) as and when asked to do so. The presenta on of the personal bond shall be deemed acceptance of the declara ons made in the bail pe on and all other s pula ons, terms, and condi ons of BNSS, 2023, and of this bail order.
(d). While furnishing personal bond, the pe oner shall men on the following personal iden fica on details:
1. AADHAR number
2. Passport number, (If available), when the aBes ng officer/court thinks it appropriate or considers the accused as a flight risk.
3. Mobile number (If available)
4. E-Mail id (If available)
16. If the pe oner is not in a posi on to furnish surety, it may be brought to the no ce of the concerned Court which is accep ng the bonds, and if the said Court is sa sfied with the pe oner's inability, then it shall be permissible for the said Court to exempt surety bonds.
17. The pe oner shall aBend the trial on every date and shall not influence, browbeat, pressurize, or make any inducement, threat, or promise, directly or indirectly, to the witnesses, the Police officials, or any other person acquainted with the facts and the circumstances of the case, to dissuade them from disclosing such facts to the Police, or the Court, or to tamper with the evidence.
18. During the trial's pendency, if the pe oner repeats or commits any offense where the sentence prescribed is more than seven years or violates any condi on as s pulated in this order, it shall always be permissible for the respondent to apply for cancella on of this bail. It shall further be open for any inves ga ng agency to bring it to the no ce of 8
8 of 9 ::: Downloaded on - 21-07-2024 07:16:33 ::: Neutral Citation No:=2024:PHHC:082024 CRM-M-22266-2024 the Court seized of the subsequent applica on that the accused was cau oned not to indulge in criminal ac vi es earlier. Otherwise, the bail bonds shall remain in force throughout the trial and subsequently under Sec on 481 of The Bhara ya Nagarik Suraksha Sanhita, 2023, [BNSS, 2023], if not canceled due to non-appearance or breach of condi ons.
19. The condi ons men oned above imposed by this Court are to ensure that the accused tries to reform and does not repeat the offense.
20. Any Advocate for the pe oner and the Officer in whose presence the pe oner puts signatures on personal bonds shall explain all condi ons of this bail order in any language the pe oner understands.
21. Any observa on made hereinabove is neither an expression of opinion on the merits of the case nor shall the trial Court advert to these comments.
22. In return for protec on from incarcera on, the Court believes that the accused shall also reciprocate through desirable behavior.
23. There would be no need for a cer fied copy of this order for furnishing bonds, and any Advocate for the Pe oner can download this order along with case status from the official web page of this Court and a$est it to be a true copy. In case the a$es ng officer wants to verify the authen city, such an officer can also verify its authen city and may download and use the downloaded copy for a$es ng bonds.
Pe on allowed in aforesaid terms. All pending applica ons, if any, stand disposed of.
(ANOOP CHITKARA)
JUDGE
03.07.2024
Jyo Sharma
Whether speaking/reasoned: Yes
Whether reportable: YES.
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