Bangalore District Court
State By Commercial Street vs No.1 And 2 Have Appeared Before Court In on 7 February, 2022
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 7th day of February 2022.
Present: Shri Anand T Chavan, B.Com., LL.B(Spl.).
I Addl. C.M.M BENGALURU.
JUDGMENT U/s. 355 Cr.P.C.,
Case No. : C.C.No.11471/2015
Date of Offence : 25-11-2013 to 27-5-2014
Name of complainant : State by Commercial Street
Police Station, Bengaluru.
(By Learned Sr. APP)
Name of accused : 1. Sanil Pillai S/o R.S.Pillai
aged 31 years,
r/o No.49, Balaji Layout
Singapura, Vidyaranyapura,
Benglauru 560 097.
2. Smt.Semi Pillai
W/o Sanil Pillai
aged 28 years,
r/o Saideepa Complex,
1st floor, near Masjeed,
Gokulam road, Puttabharthi,
Andhra Pradesh.
(by Shri P.Vijayanand, Advocate)
Offences complained off: U/s.509 R/w Sec.34 of IPC
and u/s 66(A), 67 of I.T.Act.
2 C.C.No.11471/2015
Plea of accused : Pleaded not guilty
Final Order : Accused are acquitted
Date of Order : 07-02-2022.
JUDGMENT
Police Inspector, Commercial Street PS has filed this charge sheet against the accused No.1 and 2 for the offences punishable under Sections 509 R/w Sec.34 of IPC and 66(A) and 67 of Information Technology Act.
2. Brief facts of prosecution case are that on 4-3-2014 and 16-4-2014 accused no.1 with an common intention to bring bad name to the company of C.W.1, 2 4 and 5 by name Flexi Partners, posted obscene, malicious, defamatory messages by making remarks and unfounded allegations against female staff members of said company in www.consumercomplaints.in and www. complaintsaboutbusiness.in websites anonymously 3 C.C.No.11471/2015 accusing C.W.1 to be indulging in infidelity and having affair with other female employees of company. Thereby the accused persons in furtherence of their common intention imputed unchaste allegations against staff members of the company with an intention to insult modesty of female staff of said company. The accused No.2 being ex-employee of said company collusively involved in alleged act with accused No.1, who is her husband. Thereafter, C.W.1 who is representative of above company lodged first information before Commercial Street police, which was registered by them in their P.S.Cr.No.131/2014 and FIR is issued. After completion of investigation, I.O. filed charge sheet against accused persons for above offences.
3. After filing of this charge sheet, cognizance of above offences is taken and summons is issued. Accused No.1 and 2 have appeared before Court in pursuant to summons and they are enlarged on 4 C.C.No.11471/2015 bail. Charge sheet copy is furnished to accused u/s 207 of Cr.P.C and charge is framed for offences punishable under Sec.509 R/w Sec.34 of IPC and also u/s 67 of I.T. Act. Accused have not pleaded guilt of alleged offences and they have claimed to be tried.
4. In order to prove the guilt of the accused, prosecution has examined 9 witnesses as P.Ws.1 to 9 and got marked 17 documents as per Exs.P1 to P17. After completion of prosecution evidence, statement of the accused as required under Section 313 of Cr.P.C. has been recorded. The accused have denied entire incriminating evidence against them.
5. On the basis of charge sheet allegation, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubts that accused No.1 in furtherance of common intention of both accused posted malicious and defamatory allegations/contents in websites by 5 C.C.No.11471/2015 name www.consumercomplaints.in &www.complaintsaboutbusiness.in by mentioning that C.W.1 is indulging in acts of infidelity and having affair with female employees of Flexi Partners company, with an intention to insult modesty of such female employees of the company and thereby accused No.1 and 2 have committed offence punishable under section 509 R/w Sec.34 of IPC?
2. Whether the prosecution proves beyond reasonable doubts that posted malicious and defamatory allegations/contents in websites by name www.consumercomplaints.in & wwwcomplaintsaboutbusiness.in by mentioning that C.W.1 is indulging in acts of infidelity and having affair with female employees of Flexy Partners company and thereby published and transmitted obscene and sexually explicit material in said website with regard to employees of said accused in electronic form and committed offence punishable under section 67 of I.T. Act?
3. What order ?6 C.C.No.11471/2015
6. Heard arguments of learned Sr.APP and learned counsel for accused persons. Perused oral and documentary evidence adduced by the prosecution. The following are findings to above points.
Point No.1 & 2 : In the Negative Point No.3 : As per final order, for the following:
REASONS
7. Point No.1 and 2:- These points are taken together for consideration as findings on one point have bearing on other points.
8. P.W.1 Dandapani S/o Tangavelu has testified in his evidence that, he knows both accused, C.W.1, he was working as Admin. Manager in Flexi Partners and accused No.2 was working in said company. He has further testified that accused no.1 has tried to bring bad name to their company as if the said company sexually harasses it's women employees and hence a bad name was portrayed about said company in the 7 C.C.No.11471/2015 eyes of public. He has further stated that C.W.1 lodged first information in that regard and later he came to know that accused have committed above offence. In cross-examination by defence side P.W.1 admits that their company provides laptop to their employees and such laptops are maintained by their technicians. The entire evidence of this witness is denied by defence side and it is suggested to him that he is deposing falsely by getting filed false case to threaten the employees of their company.
9. P.W.2 Mariya Gloria D/o Arogyadas has testified in her evidence that she knows C.W.1, 3 and both accused, she was working as associated Vice President of Flexi partners and accused No.2 was also working in said company. She has further stated that accused no.1 being husband of accused no.2 had tried to bring bad name about their company in the eyes of employees and public that the said company sexually 8 C.C.No.11471/2015 harasses its women employees. She has further stated that C.W.1 lodged first information before police, thereafter she went to Police Station and identified both accused. Further P.W.2 has identified her signature on Ex.P1 spot mahazar as per Ex.P1(a). In relevant portion of cross-examination P.W.1 admits that their office time is 9-30 to 6.00 p.m., but she does not explain as to how Ex.P1 mahazar was conducted at 9.00 a.m. on above date. She has further admitted that police have taken photo of Sony laptop, which belonged to their company itself. She has further admitted to 3-4 employees were using said laptop and its IP number is shown as 192.168.0.101 in photo. She pleads ignorance as to whether the said IP number belongs to their company or not and she admits that accused No.2 was given a desktop for her work. Further she has clearly admitted that accused No.1 had never entered their office, but he had come only till visitor's area. Most importantly she 9 C.C.No.11471/2015 has clearly admitted that she came to know about alleged offence by accused as per say of police and before that she had no knowledge as to who had posted above objectionable material in website with regard to their company. The entire evidence of this witness is also denied by defence side and it is suggested to her that their company officials themselves have posted said content.
10. P.W.3/C.W.1, Rathish S/o Mohandas, who is informant of this case and the then Manager of above Company has testified in his evidence that, from 10-4-2008 to 13-9-2018 he has worked as Manager in Flexi Partners company and some unknown persons had sent some objectionable and defamatory messages with regard to their company in website. He has further testified that he lodged Ex.P2 first information in that regard, police came to their office and conducted Ex.P1 mahazar. P.W.3 has further testified 10 C.C.No.11471/2015 that after 3-4 days police called him to PS and informed that both accused have committed said offence and they recorded his statement. He has identified related documents, which appears to be printouts of website disclosing posting of objectionable materials and contents about Flexi Partners company, photo of laptop and printer as per Ex.P3 to P12. In cross-examination by defence side P.W.3 admits that he has mentioned about personal allegations against him in Ex.P2 first information and their company itself has provided laptops to its employees. It is further admitted by him that their company itself has created IDs of laptops and they had right to call employees at any time and to seek return of such laptops. The entire evidence of this witness is also denied by defence side and it is suggested to him that he has lodged false case with regard to professional grudge.
11 C.C.No.11471/2015
11. P.W.4 Nagabhushan S/o Subramanya Sastry has testified in his evidence that, he was working as Auditor in Flexi Partners company from the year 2008 and some one had posted some objectionable and defamatory messages with regard to their company in a website. He has further stated that later he came to know that accused themselves have committed said act, he has identified both accused in PS and asserts to have given statement before I.O. In cross-examination P.W.4 has also admitted that at the time of lodging first information he did not know that accused had committed above act. The entire evidence of this witness is also denied by defence side.
12. P.W.5 Neetha W/o Gururaj has testified in her evidence that, she has worked in HR in Flexi Partner company from 2006, some one posted defamatory messages in a website in respect of their company and a complaint was filed in that regard. 12 C.C.No.11471/2015 She has further testified that she has signed Ex.P1 spot mahazar as per Ex.P1(c) and later police showed her both accused in PS saying that they themselves have committed aforesaid act. In cross-examination by defence side, P.W.5 has denied that there was some professional grudge between herself and accused and the above information was lodged to remove accused from job. She has admitted that police have not seized any laptops and she came to know about allegations against accused during investigation by the police.
13. P.W.6 Suguna W/o Jayaram the then WPC of Commercial Street P.S. has testified that on 31-5-2014 she was deputed for search of accused persons and despite efforts she could not trace accused persons. She has identified her report submitted to IO as per Ex.P13 and her signature as per Ex.P13(a). However, evidence of this witness is denied by defence side in cross-examination, but same 13 C.C.No.11471/2015 does not help prosecution in any manner to prove the guilt of accused.
14. P.W.7 Manjunath Gowda S/o Sangappa the then P.C. of Commercial Street PS has testified with regard to his deputation to search accused on 31-5-2014, apprehending accused No.1 and his production before I.O. as per Ex.P14 report. In cross- examination P.W.7 has asserted that he arrested accused near Safina Plaza. The entire evidence of this witness is also denied by defence side in cross- examination.
15. P.W.8 Muralidhar S/o Krishnegowda the then PSI of Commercial Street PS and IO of this case has testified in his evidence that, on 27-2-2014 he registered this case as per first information lodged under PS Cr.No.131/2014, he issued FIR as per Ex.P15, on 28-5-2014 he conducted spot mahazar as per Ex.P1, he deputed officials for search of accused. 14 C.C.No.11471/2015 He has further stated on 31-5-2014 accused No.1 was produced before him and he recorded his voluntary statement as per Ex.P16 and he recorded further statement of C.W.1 on said day. P.W.8 has further testified that he seized documents pertaining to CDR and laptop of accused No.1 as per Ex.P3 to P12 and thereafter handed over further investigation of the case to C.W.10. In cross-examination by defence side P.W.8 has admitted that they did not call occupants of office where crime was committed prior to their visit for mahazar. He has further admitted that he saw contents of laptop as per say of P.W.4 and he does not remember whether it was turned on or not. P.W.8 has further stated that he has not recorded MAC address of laptop and Ex.P3 to P12 do not reveal name and phone number of person who posted objectionable material.
16. Most importantly P.W.8 has clearly admitted that though IP No.192.168.0.101 is seen, he cannot 15 C.C.No.11471/2015 say whether said IP number is a private IP or public IP address. He has further admitted that he did not record Serial number of printer in which Ex.P3 to P12 were taken and he has not made correspondence to get details of IP address from concerned department. Further he has admitted that he does not remember nexus between above CDR and this case and though he admits to have obtained mail ID details from Yahoo mail, he pleads ignorance whether said document was obtained either prior to arrest of accused or later. He has further admitted that he arrested accused No.1 on suspicion and on enquiry said accused admitted to have committed above offence . Though P.W.8 asserts that he suspected said accused on routine check, he has not explained as to which routine check he carried nor he has produced any cogent evidence to prove actual involvement of accused no.1 in alleged offence. Though he has stated that accused No.1 was produced at 6.05 p.m., he has admitted that as per 16 C.C.No.11471/2015 statement of C.W.7 he was arrested at 6.30 p.m.. Most importantly P.W.8 has clearly admitted that though Ex.P3 to P12 are electronic evidence and certificate u/s 65-B of Evidence Act is necessary for such documents. However, no such certificate is produced by I.O. The entire evidence of this witness is denied by defence side.
17. P.W.9 R.S.T. Khan S/o S.R.Khan the then PI of Commercial Street PS and other I.O. of this case has testified that he took up further investigation of the case from P.W.8 and on 3-9-2014 he got incorporated Sec.67 of I.T. Act and Sec.499 of IPC. He has further stated that on 7-1-2015 he received report of C.W.6 as per Ex.P17 and thereafter he filed charge sheet against accused after completion of investigation. In cross-examination by defence side P.W.9 admits that he has collected validation certificate of electronic data as per Ex.P17. But in said 17 C.C.No.11471/2015 document no where it is stated that sexually explicit material is sent through internet. The entire evidence of this witness is denied by defence side and it is suggested to him that he has filed false charge sheet though there are no ingredients of Sec.67 of I.T. Act.
18. Thus on perusal of entire evidence of prosecution, it shows that except evidence of P.Ws.1 to 5 employees of Flexi partners, absolutely there is nothing on record to prove that accused No.1 and 2 in collusion with each other posted aforesaid objectionable article/content in aforesaid websites with an intention to malign the reputation of Flexi Partners Company or with an intention to insult modesty of women employees of said company. Further as rightly argued by learned counsel for accused, the I.Os. have not properly explained as to how the printouts of Exs.P3 to P12 documents in above website were taken and in which laptop same 18 C.C.No.11471/2015 were taken by I.O. from the company of informant. It further shows that the said documents are not properly explained in Ex.P1 mahazar nor any certificate u/s 65-B of Evidence Act has been produced by person who took print outs of Ex.P.3 to 12 documents from laptop and printer. Further nothing is explained by I.Os. as to why the said laptop and printer is not seized for the purpose of investigation nor any IP address of aforesaid laptop are mentioned for the purpose of this case.
19. It is also pertinent to note that the I.O. i.e., P.W.8 asserts that he arrested accused No.1 on suspicion, but he has not explained anything with regard to grounds under which he suspected the involvement of accused persons in above offence. Further the I.O. has neither found out the source computer and its IP address in order to prove that accused persons had used such system to upload 19 C.C.No.11471/2015 aforesaid objectionable contents in above websites nor such system is seized by I.O. for the reason best known to him. Further the I.O.s have also not produced any materials before this court in order to prove that the aforesaid contents were posted by accused no.1 himself through his mobile phone or e-mail and Exs.P3 to P5 documents reveal that the said contents were posted by one "rinablr", "M.Christy". When it is alleged that accused themselves have posted such contents, it is a primary burden on investigating agency to prove nexus between accused, the electronic device used by him for committing alleged offence and also the social platform or e-mail used for such offence with correctness of IP number and device number of concerned electronic device. Nothing explained by I.Os. in that regard. Further though the charge sheet reveals that the I.O. has collected call detail records of IP No.223.180.109.7 and cell 20 C.C.No.11471/2015 No.9741539003 of accused No.1 and though he has also collected details of his e-mail "[email protected] from concerned DSP/Nodal officer of Cyber Crime PS, CID Bengaluru, the both IOs have not explained anything as to how the said document is helpful to prove that accused No.1 himself had posted above content in websites against company of informant. Further the concerned official of CID, Cyber Crime PS is also not cited as witness in charge sheet for the reason best known to them. Further the said documents are also not supported with certificate u/s 65-B of Evidence Act. These all aspects are ground to disbelieve the case of prosecution.
20. Further as rightly argued by learned counsel for accused No.1 and 2 that on bare perusal of contents of Ex.P3 to P12, no where it shows that same are in the nature of outraging modesty of 21 C.C.No.11471/2015 women or posting any sexually explicit content. Hence on bare perusal of such contents it is difficult to believe that same are sexually explicit materials in order to attract the provisions of Sec.67 of I.T. Act much less provisions of Sec.509 of IPC. Further absolutely no independent witnesses are either cited or examined in order to prove that such contents had influenced their modesty.
21. Further as rightly argued by learned counsel for accused No.1 and 2 that as per Sec.78 of Information technology Act, the investigation of the case ought to have been conducted by police officer not the below the rank of Inspector and P.W.8 appears to be the then PSI of Commercial Street PS who has conducted major part of investigation. This aspect is also a ground to believe that the investigation conducted by P.W.8 is contrary to 22 C.C.No.11471/2015 above provisions and it vitiates his part of investigation.
22. Hence for reasons mentioned in forgoing paras, it is incumbent upon this court to hold that prosecution has failed to prove beyond reasonable doubts that accused have committed offences punishable under Sections 509 R/w Sec.34 of IPC and 67 of Information Technology Act. Hence point no.1 and 2 are answered in the Negative.
23. Point No.3: -
For the reasons stated and findings given on point No.1 and 2 , following is:
ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 and 2 are acquitted for the offences punishable under Sections 509 R/w Sec.34 of IPC and under Section 67 of Information Technology Act.23 C.C.No.11471/2015
The bail bond and surety bond executed by accused No.1 and 2 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
( Typed by me directly on computer, revised, corrected by me and then pronounced in open court on this the 7 th day of February 2022).
(Anand T Chavan) st 1 Addl. CMM., Bengaluru ANNEXURE List of witnesses examined for prosecution :-
P.W.1, Dandapani, P.W.2, Smt.Mariya Gloria, P.W.3, Rathish, P.W.4, Nagabhushan, P.W.5, Neetha, P.W.6, Suguna, P.W.7, Manjunamegowda, P.W.8, Muralidhar, P.W.9, R.S.T.Khan;
List of exhibits marked for prosecution :-
Ex.P1, Spot mahzar,
Ex.P1(a), Signature of P.W.1,
Ex.P1(b), Signature of P.W3,
Ex.P1(c), Signature of P.W.5,
Ex.P1(d), Signature of P.W.8,
24 C.C.No.11471/2015
Ex.P2, Complaint,
Ex.P2(a), Signature of P.W.3,
Ex.P2(b), Signature of P.W.8,
Ex.P3 to
Ex.P12, Documents pertaining to Company of
P.W.3,
Ex.P13, Report,
Ex.P13(a), Signature of P.W.6,
Ex.P14, Report,
Ex.P14(a), Signature of P.W.7,
Ex.P15, First information report,
Ex.P15(a), Signature of P.W.8,
Ex.P17, Report,
Ex.P17(a), Signature of P.W.9;
List of material object :
NIL
List of Witnesses examined for defence:-
NIL List of documents marked for defence:-
NIL 1st Addl. CMM., Bengaluru.25 C.C.No.11471/2015
7-2-2022 State by Sr.APP Accused No.1 & 2 C/B For Judgment (Judgment pronounced in the Open Court) ORDER Acting under Section 248(1) of Cr.P.C. the accused No.1 and 2 are acquitted for the offences punishable under Sections 509 R/w Sec.34 of IPC and under Section 67 of Information Technology Act.
The bail bond and surety bond executed by accused No.1 and 2 shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
ACMM, Bengaluru.