Bangalore District Court
State By Cyber Crime vs Accused Had Denied The Charge Levelled on 28 October, 2015
IN THE COURT OF THE I ADDL.CMM: BANGALORE
Dated this the 28th day of October 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. : C.C.No.34381/2011
Date of Offence : 20-8-2009
Name of complainant : State by Cyber Crime
Police Station
Name of Accused : Pratik Maurya
S/o Dharmaraj Maurya,
aged 28 years, No.A-201,
Mira Apartment,
Hatkesh Udyog Nagar,
Mira-Bhayandhar Road,
Mira Road (East),
Thane 401 107
Offence complained : U/s.66 of I.T.Act, 2000
r/w 34 and 403 of IPC
Plea of Accused : Pleaded not guilty
Final Order : As per final Order
Date of Order : 28-10-2015.
2 C.C.No.34381/2011
JUDGMENT
The Deputy Superintendent of Police, Cyber Crime Police Station, Bengaluru has filed the charge sheet against the accused alleging that, he had committed the offence punishable under Sections 66 of I.T.Act, 2000 r/w 34 and 403 of IPC.
2. The case of the prosecution in brief is that, C.W.1 is having S.B. account bearing No.016901552140 in ICICI Bank at Indiranagar branch, Bengaluru with online banking facility. That on 20-8-2009 the untraced criminal whose IP has been traced to Italy has hacked the account of C.W.1 and gave an online transfer of a sum of Rs.25,000/- to the account of Vijay Tukaram Jhadav, who is having his salary account No.041401504144 in ICICI Bank and another Rs.50,000/- to the account of accused Pratik D.Maurya, who is having his salary account No.000401658214 at ICICI Bank, MIDC branch at Mumbai. Accused No.1 had withdrawn the said amount by using his ATM card and even though 3 C.C.No.34381/2011 he was aware that the money credited to his account does not belong to him and has misappropriated the same. It is alleged that accused No.1 fraudulently obtained a sum of Rs.50,000/- and utilized the same by causing wrongful loss to the complainant and thereby committed the offences under Sections 66 of I.T.Act and 34 and 403 of IPC. Hence, the accusation.
3. Cognizance of the offences was taken and the presence of the accused was secured and subsequently he was released on bail.
4. Copies of the prosecution papers were furnished to the accused as contemplated under Section 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 him and claimed to be tried.
5. To bring home the guilt of the accused, the prosecution had examined 4 witnesses as P.Ws.1 to 4 and got marked documents Exs.P1 to P19 and closed 4 C.C.No.34381/2011 its side. Thereafter, the statement of the accused under Section 313 of Cr.P.C. was recorded. On behalf of the accused, 1 witness was examined as D.W.1 and no document was marked.
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 has committed the offences punishable under Sections 66 of I.T.Act r/w 34 and 403 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:- In order to establish its case, the prosecution had examined 4 witnesses as P.Ws.1 to 4 and got marked Exs.P1 to P19.
5 C.C.No.34381/2011
In order to substantiate his defence, accused had examined himself as D.W.1.
P.W.1 is the complainant who had lodged the written complaint before Deputy Superintendent of Police, Cyber Crime Police Station, COD, Bengaluru and the same was registered in Cr.No.52/2009 under Sections 66 of I.T. Act, 2000 and 420 of IPC against unknown person.
P.W.1 had deposed in the examination in chief that:
"¢B 20-08-2009 gÀAzÀÄ £À£Àß SÁvɬÄAzÀ CAvÀeÁð®zÀ ªÀÄÄSÁAvÀgÀ gÀÆ.75 ¸Á«gÀ qÁæ ªÀiÁqÀ¯ÁVzÉ CAvÀ ¨ÁåAQ£ÀªÀgÀÄ £À£ÀUÉ ¢B 21-08-2009 gÀAzÀÄ ªÀiÁ»w ¤ÃrzÀgÀÄ. £ÀAvÀgÀ Dgï.©.L. ¤zÉðñÀ£ÀzÀ C£ÀéAiÀÄ £ÀªÀÄä ¨ÁåAQ£ÀªÀgÀÄ £À£ÀUÉ gÀÆ.75 ¸Á«gÀ ºÀtªÀ£ÀÄß ¥ÁªÀw ªÀiÁrzÀgÀÄ".
It is elicited in the cross-examination of P.W.1 that:
" F §UÉÎ £Á£ÀÄ ¨ÁåAQ£ÀªÀjUÉ zÀÆgÀÄ PÉÆnÖgÀĪÀÅ¢®è. ¸ÀzÀj MA§qïìªÀÄ£ï gÀªÀjUÉ ¤ÃrzÀ zÀÆj£À ¥ÀæwAiÀÄ£ÀÄß F ¥ÀæPÀgÀtzÀ°è £Á£ÀÄ ºÁdgÀÄ ªÀiÁr®è".
"£À£Àß CPËAmï C£ÀÄß AiÀiÁgÀÄ ºÁåPï ªÀiÁrgÀÄvÁÛgÉ ªÀÄvÀÄÛ AiÀiÁgÀÄ £À£Àß CPËAmï¢AzÀ CªÀgÀ CPËAmïUÉ EAlgï£Émï ªÀÄÆ®PÀ ºÀt ªÀUÁðªÀuÉ ªÀiÁrPÉÆArgÀÄvÁÛgÉ 6 C.C.No.34381/2011 C£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è. F ¥ÀæPÀgÀtzÀ DgÉÆæ AiÀiÁgÀÄ EgÀÄvÁÛ£É C£ÀÄߪÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è".
P.W.2 who was working as Deputy Superintendent of Police, Cyber Crime Police Station had deposed that on 22-8-20009 P.W.1 had lodged the complaint as per Ex.P1 and she
registered the case in Cr.No.52/2009 and sent FIR to the Court and she had deposed about the part of investigation conducted by her in this case.
P.W.2 had deposed in examination in chief that:
"¢B 5-10-2009 gÀAzÀÄ ¥sÁæqÀ¯ÉAmï ªÀåªÀºÁgÀzÀ §UÉÎ ¥sÁæqÀ¯ÉAmï ªÀåªÀºÁgÀPÉÌ ¸ÀA§A¢ü¹zÀ L.¦. CqÉæ¸ï C£ÀÄß "who is search" £À°è ¥Àj²Ã°¸À¯ÁV El° zÉñÀ¢AzÀ §A¢zÁÝV PÀAqÀħA¢vÀÄ. D zÁR¯ÉAiÀÄ ¦æAmïOmï C£ÀÄß FUÀ £ÉÆÃqÀÄwÛzÀÄÝ CzÀ£ÀÄß ¤¦-13 JAzÀÄ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ".
It is elicited in the cross-examination of P.W.2 that:
"L.¦. CqÉæ¸ï C£ÀÄß mÉæÃ¸ï ªÀÄÁrzÁUÀ who is search £À°è L.¦ CqÉæ¸ï C£ÀÄß ZÉPï ªÀiÁqÀ¯ÁV ¸ÀzÀj L.¦. CqÉæ¸À¸ï E£ï EmÁå° AiÀÄ°è Mjf£ÉÃmï DVgÀĪÀÅzÀÄ PÀAqÀħA¢gÀÄvÀÛzÉ. D ¸À«ðÃ¸ï ¥ÉÇæªÉÊqÀgï ¥sÁgï L.¦. Mr. Gianpaolo Uggeri EªÀgÀ ºÉ¸Àj£À°è EvÀÄÛ. ¢B 25-01-2010 gÀAzÀÄ F L.¦. CqÉæ¸ïUÉ ¸ÀA§AzÀs¥ÀlÖ ¦ü¹PÀ¯ï CqÉæ¸ï ¤ÃqÀĪÀAvÉ PÉÆÃj E-ªÉÄÃ¯ï ªÀÄÄSÁAvÀgÀ 7 C.C.No.34381/2011 PÉÆÃjgÀÄvÉÛãÉ. ¸ÀzÀj E-ªÉÄïï PÁ¦AiÀÄ£ÀÄß zÉÆõÁgÉÆÃ¥ÀuÁ ¥ÀnÖAiÀÄ°è ºÁdgÀÄ¥Àr¹gÀĪÀÅ¢®è".
"DgÉÆæAiÀÄÄ ºÁåPï ªÀiÁrgÀĪÀ §UÉÎ £Á£ÀÄ vÀ¤SÉ ªÀiÁrgÀĪÀÅ¢®è. L¹L¹L ¨ÁåAPï£ÀªÀgÀÄ £À£ÀUÉ ¸ÉÖÃmïªÉÄAmï D¥sï CPËAmïì C£ÀÄß ¢B 28-8-2009 gÀAzÀÄ PÉÆnÖgÀÄvÁÛgÉ. D ¸ÉÖÃmïªÉÄAmï D¥sï CPËAmïì CzsÁgÀzÀ ªÉÄÃgÉUÉ £ÁåAiÀiÁ®AiÀÄzÀ ªÀÄÄAzÉ EgÀĪÀ DgÉÆæ ªÀÄvÀÄÛ E£ÉÆߧâgÀÄ DgÉÆæ EgÀÄvÁÛgÉ JAzÀÄ ºÉüÀÄvÉÛÃ£É JAzÀgÉ ¸Àj".
"¢B 3-11-2009 gÀAzÀÄ «dAiÀiï vÀÄPÁgÁA gÀªÀgÀ ªÀÄ£ÉAiÀÄ «¼Á¸À £À£ÀUÉ UÉÆvÁÛ¬ÄvÀÄ. «dAiÀiïvÀÄPÁgÁA CªÀgÀ «¼Á¸À UÉÆvÁÛzÀ PÀÆqÀ¯Éà CªÀgÀ£ÀÄß CgɸïÖ ªÀiÁrgÀĪÀÅ¢®è JAzÀgÉ L.¦. CqÉæ¸ï mÉæÃ¸ï ªÀiÁqÀĪÀÅzÀÄ ¨ÁQ EzÀÝ PÁgÀt CgɸïÖ ªÀiÁrgÀĪÀÅ¢®è".
It is further elicited in the cross-examination of P.W.2 that:
"¦AiÀÄÁð¢AiÀÄ CPËAmï ºÁåPï DzÀ ¢£À ºÁåPï DzÀ PÀA¥ÀÇålgï£À D¥ÀgÉÃlgï AiÀiÁªÀ ¹§âA¢ DVzÀÝgÀÄ JAzÀÄ £À£ÀUÉ UÉÆwÛ®è".
"¤¦-8 gÀ°è ªÀÄÆgÀÄ ¥sÁæqÀ¯ÉAmï lÁæAeÁPÀë£ï §UÉÎ ªÀÄÆgÀÄ L.¦. EgÀÄvÀÛzÉ JAzÀgÉ ¸Àj".
"¦AiÀiÁ𢠨ÁåAQ¤AzÀ CPËAmï ºÁåPï DzÀ §UÉÎ j¸Àªïð ¨ÁåAPï EArAiÀiÁzÀªÀgÀÄ zÀÆgÀ£ÀÄß PÉÆqÀĪÀÅ¢®è. ¦üAiÀiÁð¢AiÀÄ ¨ÁåAPï DzÀ L¹L¹L ¨ÁåAPï£ÀªÀgÀÄ £ÀªÀÄUÉ zÀÆgÀ£ÀÄß PÉÆnÖgÀĪÀÅ¢®è".
P.W.3 who is the Technical Expert had deposed that he had provided the technical assistance for 8 C.C.No.34381/2011 investigation of the case. P.W.3 had deposed in the examination in chief that:
"¤¦-13gÀ zÁR¯ÉAiÀÄ°è CqÉæ¸ï El° JA§ÄzÁV gÉqï ¥É£ï¤AzÀ ªÀiÁPïð ªÀiÁqÀ¯ÁVzÉ".
P.W.4 who was working as Deputy Superintendent of Police in Cyber Crime Police Station had partly investigated this case and after investigation he had filed the charge sheet.
10. The question that arise for consideration is, whether the evidence on record is sufficient to bring home the guilt of the accused ?
11. This question is answered in the negative for the following reasons:
12. The case of the prosecution is suffering from inherent infirmities.
As per charge sheet averments in second para it is mentioned that an untraced criminal whose IP has been traced to Italy has hacked the account of C.W.1, who should have been the first accused has 9 C.C.No.34381/2011 not been arrested and produced before the Court by the prosecution.
13. It is further averred in the charge sheet that after hacking the account of C.W.1 gave an online transfer of a sum of Rs.25,000/- to the account of Vijay Tukaram Jadav, who should have been the second accused has neither been made as accused nor he was arrested and produced before the Court. However, in the last para of the charge sheet it is stated that:
Note: The beneficiary accused by name Vijay Tukaram Jadav has been not traced even after repeated efforts were made to trace him at different addresses in the Mumbai City. P.W.2 the Investigating Officer has clearly admitted in the cross-examination that:
"¢£ÁAPÀ 3-11-2009 gÀAzÀÄ «dAiÀiÁ vÀÄPÁgÁA gÀªÀgÀ ªÀÄ£ÉAiÀÄ «¼Á¸À £À£ÀUÉ UÉÆvÁÛ¬ÄvÀÄ".
Thus as per charge sheet averments there are three accused persons. However it is not known why 10 C.C.No.34381/2011 the prosecution has made only Pratik D. Maurya as only accused in this case.
14. P.W.1 clearly admits that the money was in the custody of the bank and subsequently released Rs.75,000/- to him. It is natural that if P.W.1's account is hacked he should first give complaint to the bank, bank in turn would give complaint to the concerned jurisdictional Police Station to trace out the real culprit. In this case P.W.1 has not done so. Someone is operating in the bank for log in and log out. It is not known which official had opened the operating the bank in the morning and kept open the network on the particular day. It is pertinent to note that the bank people have not given any complaint. P.W.2 admits in the cross-examination that one Mr.Gianpaolo Uggeri of Italy has hacked the account of C.W.1 and it is he who should have been first accused in this case. The prosecution has not traced him and produced him before the court. The so called email to trace out 11 C.C.No.34381/2011 the physical address of the said Gianpaolo Uggeri of Italy is not produced by the prosecution. P.W.3 the Technical Expert has provided only the print out, regarding who has hacked the account of C.W.1 which is marked as Ex.P13. The prosecution has not examined C.W.2 who was the Manager of ICICI Bank who had provided the bank account statements and account opening form of C.W.1 and accused and their enclosures, IP number details and other details concerned to the case. Similarly the prosecution has not examined another Investigating Officer C.W.5. C.W.5 has not come before the Court to depose the investigation done by her. The non-examination of C.Ws.2 and 5 is fatal to the case of the prosecution. The accused has been prejudiced in his defence.
15. There is no legal evidence produced by the prosecution to prove that accused has hacked the account of C.W.1 by using the computer. There is no document to show that accused dishonestly 12 C.C.No.34381/2011 committed the offence by using the computer. There is no evidence that accused had fraudulently used the computer to defraud. When the prosecution has not proved hacking by the accused in the first instance, the question of misappropriation of property by accused does not arise. The prosecution has not proved that there was an intention on the part of the accused to hack the account of the complainant. As admitted by P.W.1, the ICICI Bank had paid Rs.75,000/- to him as per directions of R.B.I.
16. P.W.2 the Investigating Officer had sought for details with regard to account No.016901552140 of complainant, 000401658214 of accused Pratik D.Maurya and 041401504144 of Vijay Tukaram Jadav and in response to the said letter, ICICI Bank through Ex.P8 furnished only information that:
The IP details of the fraudulent transactions is given below: the time format is GMT.13 C.C.No.34381/2011
Timestamp Session ID Public IP 2009-08-2021:37:31.609 dzpw1HnwQ9Ucnc6iWVFezvc 80.94.119.202 2009-08-21 00:18:59.125 dlqYRnz_GLgnCKGbZ0z10SA 80.94.119.202 2009-08-21 00:10:56.431 dlqYRnz_GLgnCKGbZ0z10SA 80.94.119.202
It is clear that ICICI Bank has not furnished details and explained clearly the offence committed by the accused.
17. The prosecution has not proved the essential ingredients of Section 66 of I.T.Act and 403 of IPC. There exists no legal evidence to establish that accused was either entrusted with the amount or that he had fraudulently obtained a sum of Rs.50,000/- and misappropriated the same and caused wrongful loss to the complainant. There is no link to connect the alleged crime with the accused. The evidence of P.Ws.1 to 4 is insufficient to bring home the guilt of the accused. Not much discussion is necessary since there is no incriminating evidence against the accused. There exists no reasonable ground to 14 C.C.No.34381/2011 suspect that the accused had committed the alleged offences. On imaginary grounds, the accused was arrested. The case of the prosecution cannot be accepted. The prosecution has not proved the case beyond reasonable doubt. Viewed from any angle, the prosecution has failed to establish that the accused had committed the alleged offences. Accordingly, Point No.1 is answered in the Negative.
18. 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 is not found guilty of having committed the offences punishable under Sections 66 of I.T. Act, 2000 r/w 34 and 403 of IPC.
Accused is hereby acquitted of the offences alleged against him and he is set at liberty forthwith.15 C.C.No.34381/2011
The bail bond executed by the accused stand cancelled.
(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 October 2015).
(Krishna Prasad Rao Kalmady) I Addl.CMM, Bangalore.
ANNEXURE List of witnesses on behalf of prosecution:
P.W.1, Gurudev B.S., P.W.2, Renuka K.Sukumar, P.W.3, K.Mallikarjun, P.W.4, A.E.Vasudevarao;
Witnesses examined on behalf of the defence:
D.W.1, Pratik Dharmaraj Maurya;
List of documents on behalf of prosecution:
Ex.P1 Complaint,
Ex.P1(a) Signature of P.W.1,
Ex.P1(b) Signature of P.W.2,
Ex.P2, Statement of Bank account of P.W.1,
Ex.P2(a), Few lines highlighted,
Ex.P3, FIR,
Ex.P3(a), Signature of P.W.2,
Ex.P4, Letter of C.W.2 to provide IP number,
Ex.P5, Letter from C.W.2,
Ex.P6, Statement of account of accused,
16 C.C.No.34381/2011
Ex.P7, Statement of account of Vijay Tukaram
Jhadav,
Ex.P7(a), Few lines highlighted,
Ex.P8, Covering letter from ICICI Bank,
Ex.P9 -
Ex.P11, Xerox copies of account opening forms,
Ex.P12, Letter from ICICI Bank regarding
freezing of account and CCTV footage, Ex.P13, International who is search letter, Ex.P13(a), Highlighted portion at Ex.P13, Ex.P14, Letter from Trend Hyper Market Limited, Ex.P15, Documents page No.22 to 42, Ex.P16, C.P.Careers Pvt.Ltd., letter, Ex.P17, Documents page No.45 to 52, Ex.P18, Mail from ICICI bank print out took by P.W.3, Ex.P19, Email print out dated 23-8-2010;
Material Objects Produced:-
NIL List of documents marked on behalf of the defence:-
NIL I Addl.CMM, Bangalore.17 C.C.No.34381/2011 18 C.C.No.34381/2011
(Judgment pronounced in the Open Court, vide separate order) ORDER Acting under Section 248(1) Cr.P.C. I hold that, accused is not found guilty of having committed the offences punishable under Sections 66 of I.T. Act, 2000 r/w 34 and 403 of IPC.
Accused is hereby acquitted of the offences alleged against him and he is set at liberty forthwith.
The bail bond executed by the accused stand cancelled.
I Addl. CMM, Bangalore.19 C.C.No.34381/2011