Karnataka High Court
Smt. Madhulika Sharma vs The State Of Karnataka on 21 March, 2023
-1-
CRL.P No. 9710 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE R. NATARAJ
CRIMINAL PETITION NO. 9710 OF 2017
BETWEEN:
SMT. MADHULIKA SHARMA,
D/O HARIRAM SHARMA,
AGED ABOUT 35 YEARS,
R/O 2ND C-181, NEHRU NAGAR,
GHAZIABAD TOWN,
DISTRICT GHAZIABAD,
UTTAR PRADESH.
...PETITIONER
(BY SRI. SHIVARAJ N ARALI, ADVOCATE)
AND:
1. THE STATE OF KARNATAKA,
BY CYBER CRIME POLICE,
CID, BANGALORE,
REPRESENTED BY SPP,
HIGH COURT,
Digitally BENGALURU - 01.
signed by
SUMA
Location: 2. CHETAN ANAND PARASHER,
HIGH S/O TARACHAND SHARMA,
COURT OF AGED 32 YEARS,
KARNATAKA
R/O F-1, SHARADA RESIDENCY,
OLD NO.4, NEW NO.11,
3RD CROSS, MALLESHWARAM,
BENGALURU - 560 003.
...RESPONDENTS
(BY SRI. KRISHNA KUMAR K K, HCGP FOR R1;
SRI. PRATEEK CHANDRAMOULI., ADVOCATE FOR R2)
THIS CRL.P IS FILED U/S.482 OF CR.P.C PRAYING TO QUASH
THE CHARGE SHEET DATED 20.02.2013 FILED FOR THE OFFENCE
P/U/S 66(c) AND (d) OF INFORMATION TECHNOLOGY ACT AND U/S
417 OF IPC IN FIR NO.08/2012 REGISTERED IN PERSUANCE TO
-2-
CRL.P No. 9710 of 2017
PRIVATE COMPLAINT PCR NO.7037/2012 IN C.C.NO.4688/2013
PENDING ON THE FILE OF I ADDL.C.M.M., BENGALURU VIDE
ANNEXURE-D AND QUASH THE ORDER DATED 23.03.2017 PASSED
IN CRL.RP.NO.596/2016 PASSED BY THE LI ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE (CCH-52), BENGALURU THEREBY DISCHARGE
THE PETITIONER VIDE ANNEXURE-A.
THIS PETITION, COMING ON FOR ADMISSION, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
The petitioner has challenged the legality and propriety of the proceedings initiated against her in C.C.No.4688/2013 by the I Additional Chief Metropolitan Magistrate, Bengaluru City (hereinafter referred to as 'trial Court' for short) for the offences punishable under Section 417 of IPC read with Section 66C and D of Information Technology Act, 2000 (hereinafter referred to as 'the Act, 2000' for short).
2. The respondent No.2 filed a private complaint stating that the petitioner herein is his wife and that she had engaged the services of a Chartered Accountant to hack into the website of Directorate of Income Tax and secured the details of Form-26AS of the respondent No.2, by creating a fake user name and a fake user unique password. The private complaint was referred to investigation under Section 156(3) of Cr.P.C. The Cyber Crime Police Station investigated the offence -3- CRL.P No. 9710 of 2017 and filed a charge sheet for the offence punishable under Section 66C and D of the Act, 2000 and Section 417 of IPC. The trial Court took cognizance of the said offence and issued process to the accused. The accused entered appearance and was released on bail. The accused filed an application for discharge primarily contending that she had initiated a proceeding under Section 125 of Cr.P.C. against the respondent No.2 herein claiming maintenance for herself and her child at the Court in Ghaziabad and in order to demonstrate to the Court that the respondent No.2 had sufficient income to pay maintenance, she had obtained the details of Form-26AS to produce it before the Court. She also contended that the offence under section 417 of IPC and Section 66C and D of the Act, 2000 was not attracted in the facts and circumstances of the case. The trial Court however in terms of the order dated 08.07.2016 rejected the application under Section 239 of Cr.P.C. filed by the petitioner, holding that prima facie, the accused had committed the offences and that the defence set up by the accused had to be established after a trial of the case.
-4-CRL.P No. 9710 of 2017
3. Being aggrieved by the said order, the petitioner filed Crl.R.P.No.596/2016 before the Sessions Court. The Sessions Court too held that it is for the Court to decide whether the PAN number, user ID and password of a registered PAN user is confidential information and whether the wrongful procurement of such details by furnishing a fake user ID and a fake password would amount to a crime or not is a matter for trial and therefore, rejected the revision petition in terms of the order dated 23.03.2017.
4. Being aggrieved by the order passed by both the Courts, the petitioner has filed this petition.
5. Learned counsel for the petitioner submits that the trial Court took cognizance for the offence punishable under section 417 of IPC and Section 66C and D of the Act, 2000 without even considering whether the charge sheet disclosed such an offence. He submitted that the respondent No.2 was not induced by the petitioner to part with any information and therefore, an offence of cheating as defined under Section 415 of IPC was not made out. Consequently, the trial Court could not have taken cognizance of an offence punishable under -5- CRL.P No. 9710 of 2017 Section 417 of IPC. He further submits that an offence under section 66C of the Act, 2000 would be attracted only when a person fraudulently or dishonestly makes use of the electronic signature, password or any other unique identification, feature of any other person. He submits that explanation (a) and (b) to Section 66 of the Act, 2000 states that for the purpose of Section 66, the word 'dishonestly' and 'fraudulently' shall have the same meaning assigned to it in Sections 24 and 25 of IPC, respectively. He submits that Sections 24 and 25 of IPC defines the word 'dishonestly' and 'fraudulently' as an intention of causing wrongful gain to one person or wrongful loss to another person is said to do that thing "dishonestly" and "fraudulently". He therefore submits that there is no dishonest or fraudulent intention in collecting the Form-26AS of the respondent No.2 but it was only for the purpose of placing it before the Court. He therefore submits that even the offence under Section 66C and D of the Act, 2000, is not attracted.
6. Per contra, learned counsel for respondent No.2 submits that the way in which the petitioner had conspired with the Chartered Accountant in furnishing a fake user ID, password and e-mail ID to secure the details itself goes to -6- CRL.P No. 9710 of 2017 show that the petitioner was guilty of an offence punishable under Section 417 of IPC and Section 66C and D of the Act, 2000.
7. Learned High Court Government Pleader supported the order passed by the trial Court and upheld by the revision court and contended that these are all matters of trial and the petitioner cannot be discharged of the offences.
8. I have considered the submission made by the learned counsel for the petitioner as well as the learned counsel for respondent No.2 and the learned High Court Government Pleader. I have also perused the complete charge sheet placed on record by the learned counsel for the respondent No.2
9. The relationship of the petitioner with the respondent No.2 is not in dispute. It is also not in dispute that the petitioner has initiated proceedings against the respondent No.2 claiming maintenance under Section 125 of Cr.P.C. before the Court at Ghaziabad. It is a matter of record that the Hon'ble Apex Court in the case of RAJNESH VS. NEHA AND ANOTHER reported in 2021(2) SCC 324 had directed that parties to a proceeding for maintenance, should furnish their -7- CRL.P No. 9710 of 2017 assets and liabilities in the form of an affidavit. Therefore, it was incumbent for the petitioner and respondent No.2 to furnish the details of their assets and liabilities including their source of income etc. The petitioner secured the details of the respondent No.2 by creating a fake user ID and a fake password and also a fake e-mail ID. She had furnished her own mobile number to fill in the particulars to request the details of Form-26AS of the respondent No.2. No doubt, the petitioner has done so in a desperate attempt to secure the details of the respondent No.2. However, the respondent No.2 was not "induced" by the petitioner to furnish the details and she did not cause any wrongful gain or wrongful loss to the respondent No.2. Therefore, no offence under Section 415 or 417 of IPC was committed. Even otherwise, as rightly contended by the learned counsel for the petitioner, the petitioner has not "dishonestly" or "fraudulently" secured the details, but it for a legitimate purpose that is to produce it before the Court at Ghaziabad. Section 66C and 66D of the Act, 2000 provides that the words "dishonestly" and "fraudulently" found in Section 66C and 66D of the Act, 2000 shall have the same meaning as -8- CRL.P No. 9710 of 2017 defined under Section 24 and 25 of IPC, which are extracted below:
"66C. Punishment for identity theft.-Whoever, fraudulently or dishonestly make use of the electronic signature, password or any other unique identification feature of any other person, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to rupees one lakh.
66D. Punishment for cheating by personation by using computer resource.-Whoever, by means of any communication device or computer resource cheats by personation, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine which may extend to one lakh rupees."
24. "Dishonestly".--Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing "dishonestly".
25. "Fraudulently".--A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise."
10. The act of the petitioner securing the details cannot be termed to be dishonest or fraudulent and therefore, an offence under Section 66C and D of the Act, 2000 was not attracted. The trial Court as well as the revision Court failed to -9- CRL.P No. 9710 of 2017 notice the contours of Section 66C and D of the Act, 2000 and Section 417 of IPC but blindly took cognizance of the offences.
11. In view of the above, the criminal proceedings initiated against the petitioner do not deserve to be continued. Hence, the following:
ORDER The petition is allowed.
The prosecution of the petitioner in
C.C.No.4688/2013 by the I Additional Chief
Metropolitan Magistrate, Bengaluru City for the offences punishable under Section 417 of IPC read with Section 66C and D of Information Technology Act, 2000 is quashed.
The petitioner is set free.
Any observation made by this Court shall not impact or affect any case filed between the parties in any Court.
Sd/-
JUDGE NR/-List No.: 1 Sl No.: 16
CT:STK