Madhya Pradesh High Court
Santosh vs The State Of Madhya Pradesh on 6 April, 2021
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
:1: Cr.A.No.659-2018
THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
SINGLE BENCH
Criminal Appeal No. 659 / 2018
Santosh s/o Ramesh Bharti ......... Appellant
vs.
State of Madhya Pradesh ......... Respondent
-----------------------------------------------------------------------------------
Coram :
Hon'ble Shri Justice Subodh Abhyankar
------------------------------------------------------------------------------
Shri Harish Joshi, learned counsel for the appellant.
Smt. Mamta Shandliya, learned Govt. Advocate for the
respondent/State.
-------------------------------------------------------------------------------------------
Whether approved for reporting :
JUDGMENT
( Delivered on 06 / 04 / 2021) This Criminal Appeal has been filed under Section 374 (2) of the Criminal Procedure Coder, 1973 against the judgment dated 8.1.2018 passed by the First Additional Sessions Judge, Jaora, District-Ratlam in S.T. No.258/2015, whereby the learned Judge of the Sessions Court finding the appellant guilty, has convicted him for an offence under Section 66C of the Information Technology Act, 2000 (hereinafter referred as the I.T. Act) and has sentenced him to :2: Cr.A.No.659-2018 rigorous imprisonment for three years and a fine of Rs.2000/- with default clause.
2. The facts giving rise to the present appeal are that, on 24.9.2014, one G.B. Bamankar, Principal of G.T. Polytechnic College, Jaora filed a complaint before the Superintendent of Police Cyber Cell District-Ratlam to the effect that an e-mail has been forwarded to him by Dr. Ashish Dongare which has been sent to him by one Pankaj Kanthed's e-mail ID who is posted as Lab Technician in the said College and when G.B. Bamankar enquired regarding the said e-mail from Pankaj Kanthed, he informed that the said e-mail has not been sent by him and according to Pankaj Kanthed, e-mail ID [email protected] has been created by some other person fraudulently which is a cyber crime.
3. On this complaint, a first information report was lodged on 03.01.2015 at crime No.9/2015 under Sections 419, 468, 469 & 471 of the I.P.C. read with Section 66A(c), 66C and 66D of the Information Technology Act, 2000 against the unknown person and investigation ensued in which it was found that it was the present appellant Santosh Bharti who had sent the aforesaid e-mail. The charge sheet was filed and after the case was committed, the learned Judge of the trial Court, after recording the evidence, while acquitting him in respect of offences under Sections 419, 468, 469 & 471 of the I.P.C. and Section 66A(c) and 66D of IT Act, convicted the appellant as aforesaid u/s. 66C. Thus, being aggrieved, this appeal has been :3: Cr.A.No.659-2018 preferred by the appellant.
4. Learned counsel for the appellant has submitted that the learned Judge of the trial court has erred in not appreciating the evidence in its proper perspective. It is further submitted that the prosecution has failed to prove that the appellant had sent the e-mail to Ashish Dongare by using a forged e-mail ID as the email Ex.P/2 has not been proved in accordance with law as no certificate under the provisions of Section 65-B of the Evidence Act, 1872 has been filed on record. It is submitted that in the absence of a valid certificate u/s.65-B of the Evidence Act, Ex.P/2 cannot be read in evidence and on this ground only the appellant is liable to be acquitted. It is further submitted that the prosecution has not been able to prove its case beyond reasonable doubt, which is also apparent from the deposition of P.W.3 Ritesh Singh, Constable, Ratlam cyber cell, who has admitted that the I.P. Address of any e- mail keeps on changing, and since the prosecution has tried to establish the guilt of the appellant on the basis of the I.P. Address itself, on this ground also the impugned judgment is liable to be set aside. It is further submitted by Shri Joshi that the SIM No.747027011 which belongs to the appellant was activated on 18.3.2014, whereas the e-mail ID was created on 31.1.2014 which castes a shadow of doubt over the prosecution story. Counsel has further submitted that the certificate issued under the provisions of Section 65-B of the Evidence Act in respect of other electronic :4: Cr.A.No.659-2018 evidence Ex.P/5, which is the information provided by the service provider has also not been issued in accordance with the law and cannot be used to convict the appellant. Counsel for the appellant has also submitted that the prosecution has miserably failed to prove the ingredients of Section 66C of the I.T. Act and thus, the impugned judgment cannot be sustained in the eyes of law. Counsel has further submitted that the prosecution has not been able to prove that the mobile SIM No.9993998277 was used by the appellant to create the forged e-mail ID [email protected], as it is not proved that the SIM belong to the present appellant only in such circumstances, he can also not be convicted u/s.66C of the IT Act.
5. In support of his submissions, Shri Joshi, counsel for the appellant has also relied upon the decision in the case of Rajesh vs. State of Kerala reported in AIR 2010 S.C. 840 and Anvar P.V. vs. P.K.Basheer and others reported as 2015(1) MPLJ 507.
6. Learned counsel for the respondent/State, on the other hand, has opposed the prayer and it is submitted that no case for interference is made out as the learned Judge of the trial court has rightly appreciated the evidence on record and has come to a conclusion of guilt of the appellant.
7. Heard the rival submissions and perused the record.
8. It is not disputed that at the time of incident i.e. in the year 2014, complainant P.W.1 G.B.Bamankar was posted as the Principal of G.T. Polytechnic College, Jaora. P.W.2 Pankaj Kanthed was posted :5: Cr.A.No.659-2018 as Lab Technician in the said college, P.W.6 Dr.Ashish Dongare was posted as Director, Technical Education, State of M.P. It is also not disputed that Email ID [email protected] was registered at Jammu on 31.01.2014 with IP address as 117.219.160.10 with mobile No.9993998277 whereas appellant Santosh Bharati's mobile No.7747027011 was activated on 18.03.2014 and by use of his mobile number, Email from the said IP address was sent in the name of Pankaj Kanthed to Ashish Dongare on 28.07.2014.
9. At this juncture, it would be apt to reproduce the contents of the email dated 28.07.2014, which is the subject matter of the dispute. The same reads as under:-
" .....Forwarded message....... From:pankajkanthed [email protected]> Date: Mon, July 28, 2014 at 8:17 PM Subject : action against santosh bharti To : " ashish.dongre @gmail.com"
< ashish.dongre @gmail.com> Respected sir pankaj kanthed request you to take strict action against santosh bharti because he is trying to put an end to my property broker business. Santosh bharti is also trying to put and end to all our illegal activities and he always fights for his own legal rights and other person's legal rights as well and you know it well that i, my brother mahendra kanthed, mukesh gupta, tpo sanjay kumar borse and principal g b bamankar always want to run college according to our will and we do not like to follow rules and regulations. So please take strict action against Santosh Bharti. If you take strict action against Santosh Bharti i will give come to meet you and then we will settle the matter between us. I hope you will take strict action against Santosh Bharti.
Pankaj Kanthed
:6: Cr.A.No.659-2018
G T polytechnic college jaora"
10. In the considered opinion of this Court, if it is to be proved that a person has committed an offence of identity theft and has sent an email ID in the name of some other person by impersonation, then it is the primary duty of the prosecution to prove the email itself at the first instance.
11. On perusal of the record it is found that the email Ex.P/2 is merely a photocopy of the forwarded email sent to P.W.1 B.G.Bamankar, this photocopy Ex.P/2 is not supported by any certificate under the provisions of Section 65-B of the Evidence Act which is fatal to the case of prosecution.
12. In view of the same, in the considered opinion of this court, the appellant cannot be convicted u/s.66C of the IT Act. which relates to punishment for identity theft as the contents of the aforesaid email Ex.P/2 cannot be read in evidence. P.W.3 Ritesh Singh, constable in the Cyber Cell is also totally silent on Ex.P/2 in his examination-in- chief and although he has also not be cross examined about this document but that is inconsequential as it was the primary responsibility of the prosecution to prove the documents in accordance with law. In this regard, reference may be had to the decisions rendered by the Supreme Court in the case of Anvar P.V. (supra) wherein in para 17 it is held as under:
"17. The Evidence Act does not contemplate or permit the proof of an electronic record by oral :7: Cr.A.No.659-2018 evidence if requirements under section 65-B of the Evidence Act are not complied with, as the law now stands in India."
13. It is apparent from the aforesaid dictum that a mere printout or photocopy of an electronic record cannot be read in evidence in the absence of a certificate u/s.65-B of the Evidence Act and if we obviate Ex.P/2 from the record, the case of the prosecution crumbles to the ground. Thus, it is held that the prosecution has not be able to prove the guilt of the appellant in the absence of reliable evidence. A careful scrutiny of the impugned judgment also reveals that the learned judge of the trial court has also not dealt with this aspect of the matter and has proceeded to decide the matter on merits, which, in the considered opinion of this court cannot be countenanced.
14. For the reasons as aforesaid, it is not required by this court to dwell upon the other grounds raised by the appellant.
15. Resultantly, the appeal stands allowed, the impugned judgment is hereby set aside and the appellant stands acquitted.
(Subodh Abhyankar)
Judge
moni
Digitally signed by MONI RAJU
Date: 2021.04.07 10:24:26
+05'30'
:8: Cr.A.No.659-2018
HE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE Criminal Appeal No.659-2018 (Santosh s/o Ramesh Bharti vs. State of M.P.) Indore, Dated: 18.02.2021 Shri Harish Joshi, learned counsel for the appellant. Smt. Mamta Shandliya, learned Govt. Advocate for the respondent/ State.
Arguments heard.
Reserved for judgment.
(Subodh Abhyankar) Judge Indore, Dated: 06.04.2021 Judgment delivered, signed and dated.
(Subodh Abhyankar) Judge moni