Jharkhand High Court
Ritesh Kumar vs The State Of Jharkhand on 13 May, 2022
Author: Sanjay Prasad
Bench: Sanjay Prasad
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
Cr. Appeal (S.J.) No. 493 of 2021
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Ritesh Kumar ..... Appellant
Versus
The State of Jharkhand ...... Respondent
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Present
HON'BLE MR. JUSTICE SANJAY PRASAD
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For the Appellant : Mr. A. K. Kashyap, Senior Advocate
Mr. Anurag Kashyap,Advocate
For the State : Mr. Shailendra Kumar Tiwari, Spl.P.P.
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ORDER
I.A. No. 6852 of 2021 C.A.V. on 12.05.2022 Pronounced on 13/05/2022 Heard Mr. A. K. Kashyap, learned Senior Counsel appearing on behalf of the appellant and Mr. Shailendra Kumar Tiwari, learned counsel for the State.
2. The instant I.A. No. 6852 of 2021 has been filed by the appellant for suspension of sentence and for grant of bail to the appellant, during pendency of the Criminal Appeal.
3. This Criminal Appeal has been filed on behalf of the appellant challenging the judgment of conviction dated 26.08.2021 and order of sentence dated 31.08.2021 passed by learned Special Judge (Cyber Crime), East Singhbhum, Jamshedpur in Cyber Crime Case No. 26 of 2020 alongwith Cyber Crime No. 47 of 2020 whereby the appellant-Ritesh Kumar along with four others Sonu Kumar Mahato, Pradip Mazumdar, Mantosh Kumar Poddar and Mahesh Kumar Poddar have been convicted for charges for committing the offences punishable under Sections 420/468/471/419 of the Indian Penal Code and Sections 66-C and 66-D of the I. T. Act and have been sentenced to undergo R. I. for 2 a period of seven(7) years and to pay fine of Rs. 5,00,000/- each for the offences under Section 420 of the Indian Penal Code and in default of fine, further sentenced to undergo R. I. for a period of Six (6) months.
The appellant has also been sentenced to undergo R. I. for a period of seven(7) years and to pay fine of Rs. 5,00,000/- for the offences under Section 468 of the Indian Penal Code and in default of fine, further sentenced to undergo R. I. for a period of Six (6) months. The appellant has been sentenced to undergo R. I. for a period of three (3) years and to pay fine of Rs. 3,00,000/- for the offences under Section 471 of the Indian Penal Code and in default of fine, further sentenced to undergo R. I. for a period of three(3) months. The appellant has also been sentenced to undergo R. I. for a period of three (3) years and to pay fine of Rs. 1,00,000/- for the offences under Section 120-B read with 420/468/471/419 of the Indian Penal Code and in default of fine, further sentenced to undergo R. I. for a period of two (2) months.
The appellant has also been sentenced to undergo R. I. for a period of three (3) years and to pay fine of Rs. 1,00,000/- for the offence under Section 66-C of the I. T. Act and in default of fine, further sentenced to undergo R. I. for a period of two (2) months and has further been sentenced to undergo R. I. for a period of three (3) years and to pay fine of Rs. 1,00,000/- for the offence under Section 66-D of the I. T. Act and in default of fine, further sentenced to undergo R. I. for a period of two (2) months.
All the sentences have been directed to run concurrently, however learned Court below has specifically ordered that the fine imposed under the different Sections shall be paid separately. The period of custody already undergone shall be set off.
4. It has been submitted by the learned Senior Counsel for the appellant that the judgment of conviction and order of 3 sentenced passed by the learned Court below are illegal and not sustainable in the eye of law. It is submitted that the learned Court below has not appreciated the evidence properly. It is submitted that the appellant is not named in the FIR and his name has come in this case on the basis of confessional statement of co-accused namely Pradip Mazumdar. It is submitted that co-convict Sonu Kumar Mahato has not named the appellant when the FIR was lodged. It is submitted that eleven (11) witnesses have been examined during trial and in which several witnesses i.e. P.W. -1- Bikash Uraon, P.W.-2- Sanjay Kumar Sinha, P.W.-3-Sailendra Kumar Sahu, P.W-4-Alok Mukhi, P.W.-5-Samu Ram Sandil, P.W.- 6- Laxmi Sandil and P.W.-8- Graygori Toppo have not stated anything against the appellant. It is submitted that P.W.-7- Damyanti Sandil is one of the victim of this case, however, she has also not alleged and stated anything against the appellant. It is submitted that P.W.-10, Santu Kumar and P.W.-11, Santosh Poddar are the seizure list witnesses on the recovery of documents and articles from co-convicts Sonu Kumar Mahato and Mantosh Kumar Poddar. It is submitted that P.W.-9, Upendra Kumar Mahato is the I.O. of this case and only on the basis of evidence of I.O. i.e. P.W.-9, Upendra Kumar Mahato, the appellant has been convicted. It is submitted that even the I.O. during his cross- examination has stated at para-45 that he has seized neither ATM Cards, Aadhar Cards nor any mobile phones nor any SIM from the possession of the appellant. It is submitted Ext. 25 and 25/1 respectively are the statements of bank account of the appellant, which has been denied by him. It is submitted that the Branch Manager of the Indian Overseas Bank whereas the appellant is alleged to have opened bank account, has not been examined by the prosecution. It is submitted that P.W.-9, Upendra Kumar Mahato i.e. I.O. has admitted in para-65 of his cross-examination 4 that no victim has come forward to depose against the appellant and others. It is submitted that burden of proof lies upon the prosecution to prove the case of cheating and committing cyber crime against the appellant. It is submitted that the signature of the appellant in the bank account was not verified. It is submitted that Section 66-C and 66-D of the I.T. Act are not applicable in the facts and circumstances of the case and the learned Court below has wrongly convicted the appellant under the aforesaid charges. It is further submitted that even the prosecution has failed to prove the charges under Section 420/468/471/120B I.P.C. read with Section 420/468/471/419 of the Indian Penal Code. It is submitted that offence under Section 66-C and 66-D of the I.T. Act are bailable in light of the provisions of Section 77 (3) of the I.T. Act. It is submitted that there is no presumption under the provisions of I.T. Act to rebut the charges and duty is cast upon the prosecution to prove the charges. It is submitted that the appellant has also denied during his statement recorded under Section 313 of the Cr. P.C. while being examined by the learned Court below that he had not opened his bank account. However, learned Court below has convicted the appellant having failed to explain the availability of an amount of Rs. 3,69,014/- in the bank account of the appellant. It is submitted that learned Court below has wrongly relied upon the bank statement along with certain documents marked as Ext. 25 and 25/1 and the learned Court below ought to have verified the signature of the appellant on the opening form of the bank account through Handwriting Expert. It is further submitted that I.O. has admitted during his cross-examination at para-87 that although the petitioner has got two criminal antecedents after institution of the present case and at best there are only two cases pending against the appellant. It is further submitted that the appellant has remained in custody from 26.06.2020 till 11.01.2021 i.e. for more 5 than six months and thereafter the appellant is in custody from the date of passing of the impugned judgment i.e. 26.08.2021 i.e. for more than eight months and thus the appellant has around competed 15 months in custody and as such he may be enlarged on bail.
5. On the other hand, learned counsel for the State has opposed the prayer for bail. It is submitted that the appellant- Ritesh Kumar along with four others co-convicts namely Sonu Kumar Mahato, Pradip Mazumdar, Mantosh Kumar Poddar and Mahesh Kumar Poddar have been rightly convicted by the learned Court below. It is submitted that co-convict, Sonu Kumar Mahato was having found having dubious bank account, which was verified and proved by Sanjay Kumar Sinha, Branch Manager, Indian Bank, Jamshedpur and thereafter Pradip Mazumdar, Mantosh Kumar Poddar were arrested and the name of the appellant Ritesh Kumar has come in this case on the basis of confessional statement of co-convict Pradip Mazumdar. It is submitted that co-convict Pradip Mazumdar is the mastermind of the entire crime and the appellant-Ritesh Kumar was also found to be the associate of the said Pradip Mazumdar and Sonu Kumar Mahato and it is evident from the confessional statement of co- convicts Pradip Mazumdar and Sonu Kumar Mahato marked as Ext.-14 and Ext. 11 respectively. It is submitted that series of documents i.e. 34 ATM Cards, nine passbooks of different banks, five mobile phones, 43 PAN cards, 16 SIM cards, cheque books, various I.D. proofs etc. have been recovered from the possession of co-convict Sonu Kumar Mahato and Pradip Mazumdar respectively and all these above documents fully established the involvement of the present appellant -Ritesh Kumar along with four others namely Sonu Kumar Mahato, Pradip Mazumdar, Mantosh Kumar Poddar and Mahesh Kumar Poddar in cheating 6 and duping the general people. It is submitted that the appellant during his statement recorded under Section 313 of the Cr. P. C. has simply denied the allegation that the bank account was not opened by him and this is not sufficient as the appellant could not give proper reply from which source sum of Rs. 3,69,014/- had come from the different accounts holders and which was credited in the account of the appellant on various dates through 'Online Mode' from various districts all over the country. It is submitted that P.W.-2, Sanjay Kumar Sinha and P.W.-9, Upendra Kumar Mahato, I.O., have fully supported the prosecution case. It is submitted that P.W.-9 is the I.O. of this case and who has brought on record several materials including Ext.25 and 25/1 respectively, which are certificate issued under Section 65-B of the Indian Evidence Act and Bank Account statement of the appellant, which fully prove the guilt of the appellant and as such prayer for bail of the appellant is fit to be rejected.
6. Perused the Lower Court Records of this case and considered the submissions of both the sides.
7. The present Criminal Appeal has been heard along with Criminal Appeal (S.J.) No. 433 of 2021 on 12.05.2022, however, the order is being passed separately today i.e. on 13.05.2022.
8. It transpires from the FIR that in the light of E-mail received from the Sector-50, Noida Branch through Cyber Cell, G. B. Nagar on 27.01.2020 and on suspicion by one of the bank employee i.e. P.W.-4, Alok Mukhi, the co-convict, Sonu Kumar Mahato was apprehended and he was interrogated on 06.02.2020 his bank account was freezed, thereafter Sonu Kumar Mahato was taken into custody.
Thereafter, on the basis of confessional statement of Sonu Kumar Mahto, the names of the co-accused Pradip Mazumdar and Mantosh Kumar Poddar had come in this case and there after 7 confessional statement of both the co-convicts namely Pradip Mazumdar and Mantosh Kumar Poddar were recorded, which have been marked as Ext. 14 and Ext. 16/17 respectively.
9. It also transpires that P.W. 9 i.e. the I. O has further stated in para-45 that during 01.07.2019 to 01.11.2019, a sum of Rs. 3,68,885/- was credited in the bank account of the appellant open in the Indian Overseas bank whereas the appellant has withdrawn a sum of Rs. 3,69,014/- from the said period in support of the same I. O. has proved Ext. -25 and 25/1 respectively, which are the bank account statement issued by the Branch Manager of Indian Overseas Bank with the certificate under Section 65-B of the Indian Evidence Act given by Jyoti Kumari, Branch Manager, Indian Overseas Bank, Mango, Jamshedpur having affixed seal of Indian Overseas Bank on these documents marked as Ext. 25 and 25/1 respectively. However, the appellant has denied the opening of the bank account himself during his statement recorded under Section 313 of the Cr. P. C. before the learned Court below, but the appellant has flatly denied. The appellant has not disputed Ext. 25 and Ext. 25/1 during trial, which was proved and marked as Exhibits and Ext. 25 and Ext. 25/1 have been marked without objection during trial.
10. Mere formal and/or flatly denial of not opening of the bank account by the appellant himself does not show that it has not been opened by him. In the present case the name of the appellant has come on the basis of confessional statement of co-accused Pradip Mazumdar, which has been marked as Ext.-14 and he has specifically stated that the appellant- Ritesh Kumar was his associate and thereafter on the basis of confession and disclosure of co-convict Pradip Mazumdar on 07.02.2020 vide Exhibit-14, the name of the appellant figured, but the appellant managed to fled away for a long time. However, the police has obtained and 8 recovered the copy of the bank account and statement of bank account marked as Ext. 25 and 25/1 respectively. Thus, it is case that there has been illegal transaction in the name of lottery, over installation of mobile towers, game and inducing the people in the fake name of the Branch Manager. Therefore, the plea of the appellant is not tenable that he is neither concerned with co- convict Pradip Mazumdar nor concerned with the bank account no. 156401000006155 opened in the Indian Overseas Bank, which has been opened in the name of the appellant.
11. From confessional statement of Pradip Mazumdar (i.e. Ext.-14), it would further reveal that the role of the appellant was to induce the Customers in the name of presenting himself as fake Branch Manager. Apart from this prosecution has clearly proved that the bank account statement from 01.07.2019 to 11.11.2019 Marked as 25 and 25/1 respectively with valid certified issued under Section 65-B of the Indian Evidence Act, which has been opened by the appellant in the Indian Overseas Bank. It has come in the evidence of P.W.-9 at para-78 that name of account holders are fake and fake I.D. were credited by the appellant and other co- convict to cheat the customers. The appellant has failed to explain as to how amount of Rs. 3,68,865/- in question on different account has been credited in his account, which is fully proved from the statement of bank account in three sheets issued under Section 65-B of the Indian Evidence Act by Mrs. Jyoti Kumari, Branch Manager, Indian Overseas Bank, Mango, Jamshedpur in relation to FIR. No. 04 of 2020 (i.e. the present case) issued on 20.04.2021, which have been marked as Ext.-25 and 25/1 and although Ext.- 25/1, which contains the statement of the bank account of the appellant on different dates from 01.07.2019 to 11.11.2019 are faint, but it also shows deposit of Rs. 3,68,885/- different denominations from different persons. Prosecution has 9 successfully proved credit of Rs. 3, 68,885/- in the bank account of the appellant and withdrawal of Rs. 3,69,014/- from the bank account of the appellant, however, the same has not been rebutted by the appellant. Para-69 of the evidence of the I.O. reveals that he had obtained official Account Sheets, KYC From, Aadhar Card and Bank Card of the appellant from the Branch Manager, Indian Overseas Bank.
12. It also transpires from perusal of the Lower Court Records that the Co-ordinate Bench in B. A. No. 10504 of 2020 vide order dated 06.01.2021 directed the learned Court below to conclude the trial within six months from the date of receipt of the copy of the order.
13. The Trial Court has meticulously dealt with all the documents and Exhibits and also the Material Exhibits, which is appreciated by this Court also.
14. It also appears to be a case of negligence on the part of two districts of police due to which two persons namely Ritesh Kumar and Mahesh Kumar Poddar could not be arrested as Senior Police officials had not properly supervised and had not instructed the I.O. during investigation. I.O. i.e. P.W. 9 should have been instructed to make proper investigation under the supervision of Superintendent of Police or D.I.G. or any other superior authority. I. O. has stated during his cross- examination at para-78 that several passbooks were opened in the fake name and the victims were not examined by the police. So far as other victim, from whose account, amounts were debited, could not be examined. There was lack of co-ordination between the police department and I.T. Department dealing in cyber crime matters.
15. It further transpires from the evidence of P.W.-9 that the appellant has got two criminal antecedents, therefore, allowing the bail to the appellant at this stage may also influence and tamper 10 the witnesses of other cyber crime case pending in the learned Court below.
16. In view of the judgment reported in 2019 (14) SCC 438 in the case of Prahlad Versus State of Rajasthan, it transpires that the silence of the accused persons and mere denial of the accused persons while being examined under Section 313 of the Cr. P.C. by the trial Court may lead to an adverse inference against the accused persons and then the Court may draw adverse inference against the accused.
17. In the present case, the appellant-Ritesh Kumar has mere denied that he has not opened the bank account during his statement under Section 313 of the Cr. P. C. and he has shown ignorance about the availability of Rs. 3,69,014/- in his bank account and as such in view of the judgment of the Hon'ble Supreme Court reported in 2019 (14) SCC 438, the Court can draw adverse inference against him.
The appellant-Ritesh Kumar could not rebut the evidence of received Rs. 3,69,014/- in his bank account and as such, the learned Court below has convicted the appellant after taking into consideration his answer given during his examination under Section 313 of the Cr. P. C. and which has been supported by the judgment reported in the case of Prahlad Versus State of Rajasthan reported in 2019 (14) SCC 438.
18. Considering the facts and circumstances of the case, I am not inclined to enlarge the appellant on bail at this stage and as such the prayer for bail of the Appellant is rejected.
However, the appellant will be at liberty renew his prayer for bail after completing two years of sentence.
19. Accordingly, I.A. No. 6852 of 2021 stands rejected and disposed of.
Kamlesh/ N.A.F.R. (Sanjay Prasad, J.)