Bangalore District Court
State By Nandini Layout vs Appeared Before Court And Charge Sheet on 17 November, 2021
IN THE COURT OF THE I ADDL.CMM: BENGALURU
Dated this the 17th day of November 2021.
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.19456/2016
Date of offence : 01.09.2015 to 12.01.2016
Name of complainant : State by Nandini Layout
Police Station
(By Learned Sr. APP)
V/s.
Name of accused : Sukumaran .M,
@ Sumaran Nayar,
S/o Late K. N. Madavan Nayar,
Aged about 62 years,
R/at No.34, K. Muniswamappa
Road, Ramaswamypalya,
Maruthisevanagara Post,
Banasavadi, Bangalore-33.
(A1 Rep. By. Sri. Gopal &
Associates Advocate.)
Offences complained off : U/s. 67 and 67(A) of
I.T. Act
Plea of accused : Pleaded not guilty
Final order : Accused is acquitted
Date of order : 17.11.2021
******
JUDGMENT
Police Inspector, Nandini Layout Police station has filed charge sheet against the accused above 2 C.C.No. 19456/2016 named for the offences punishable under Sec.U/s. 67 and 67(A) of Information Technology Act, 2000.
2. Brief facts of prosecution case are that :-
CW1 invested in chits at Indira Nagar Chit Fund Trading Pvt., Ltd., situated at Malleshwaram and at that time, accused being Assistant Manger of said chit fund company introduced himself to her. Thereafter, CW1 was speaking to accused No.1 friendly. However the accused misused such relationship and started sending embarrassing, obscene messages and messages outraging modesty of women to C.W.1, through his mobile phone No.9986704715 to the mobile of CW1 bearing No.8880291115. Further accused started misbehaving with her by sending such vulgar messages and calling her for unethical practices. Hence, CW1 approached Nandini Layout Police and lodged first information on 30.01.2016. The case was registered by said police in their PS crime No.23/2016. The IO seized mobile phone produced by CW1 with first information and forwarded it for 3 C.C.No. 19456/2016 expert opinion. After recording statements of material witnesses, after securing report of expert and after completion of investigation IO filed charge- sheet against accused for above offences.
3. The accused was arrested during crime stage and he is enlarged on bail. After charge-sheet accused appeared before court and charge sheet copies are furnished to him under Sec.207 of Cr.P.C. Charge framed, accused has not pleaded guilt of alleged offence and he has claimed to be tried.
4. In order to prove the guilt of the accused, prosecution has examined 6 witnesses as P.Ws.1 to 6 and got marked 8 documents as per Exs.P1 to P8. After completion of prosecution evidence, statement of the accused as required under Section 313 of Cr.P.C. is recorded. The accused has denied the incriminating evidence against him and he has not led any defence evidence.
4
C.C.No. 19456/2016
5. On the basis of charge sheet allegations, the following points arose for my consideration:
1. Whether the prosecution proves beyond reasonable doubts that, accused has committed offences punishable under section 67 of Information Technology Act?
2. Whether the prosecution proves beyond reasonable doubts that, accused has committed offences punishable under section 67(A) of Information Technology Act?
3. What order ?
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 and 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 5 C.C.No. 19456/2016 have bearing on other points and also to avoid repetition of facts and evidence.
8. Prosecution got examined as many as 6 witnesses as PW1 to PW6. P.W.1 Sandhya S. W/o. Manjunath Gowda has testified in her evidence that, in the month of October 2015, accused sent bad and embarrassing whatsapp messages to her whatsapp No.8880291115 and he asked her to settle with him in Bengaluru and Kerala. She has further testified that, she informed the matter to her husband i.e., PW2 and when her husband inquired him, he admitted his misdeed and agreed to settle chit fund amount. P.W.1 has further testified that, she lodged first information against accused before Nandini Lay out Poilce station as per Ex.P.1 and she has identified her signature on it as per Ex.P.1(a). She has further testified that, on said day Police seized her LG mobile phone under Ex.P.2 seizure mahazar and she has identified her signature on it as per Ex.P.2 (a). She has further identified a Letter said to have been issued by accused as per Ex.P.4, another seizure mahazar under which 6 C.C.No. 19456/2016 above letter was seized by Police from her house as per Ex.P.3, her signature on said mahazar as per Ex.P.3(a) and her seized LG Mobile phone as per M.O.1. She has further identified print outs of messages sent by accused to her mobile phone, which are said to have been taken by her husband from a Cyber cafe as per Ex.P5. However in relevant portion of cross examination by defence side, this witness has admitted that, she has committed default in paying chit fund amount and she pleads ignorance that, in the month of January 2016 her husband (PW2) asked accused himself to pay said amount. She has denied that, PW2 had kidnapped the accused on 12.01.2016 in a car, but she admits that, she has filed two cheque bounce cases against accused before 19th ACMM Court, which are said to be CC No.14270/2015 and CC No.14271/2015. She has further admitted that, she has filed another case against the accused on 30.01.2016 and she has given statement as if accused insisted her for sexual act from September 2015 to January 2016. She has further admitted that, she 7 C.C.No. 19456/2016 herself handed over mobile phone to police, which was seized by them. The entire evidence of this witness is denied by defence side in toto. However when aforesaid said cheque cases were already filed against accused in the year 2015 itself, the question of accused sending friendly or obscene messages to PW1 till January 2016 appears to be doubtful.
9.P.W.2 Manjunath Gowda S/o. Puttaswamigowda who is said to be husband of P.W.1 and the material witness of the case, has testified in his evidence that P.W.1 is his wife, she has kept a chits of Rs.10 lakh and 25 lakh in Chit fund of Indira Nagar in which accused was Assistant Manager and thereby he got introduced himself to her. He has further testified that, after some days accused solicited physical demands to P.W 1 by sending SMS to her mobile phone and he was asking her to come to him by leaving her husband. He has further testified that, P.W.1 showed him such messages and when he inquired accused, he gave Ex.P.4 letter to him by tendering apology. P.W.2 has further testified that, 8 C.C.No. 19456/2016 later again accused sent obscene messages to mobile phone of P.W.1 and in this regard they filed complaint before Nandini Layout police station as per Ex.P.1. He has further stated that, he himself took print outs of messages of M.O.1 mobile from a Cyber center as per Ex.P.5. However as per version of PW1 the aforesaid messages were sent by PW1 through wahtsapp, whereas PW2 has stated that, the above messages were sent by SMS. Further PW2 does not speak anything as to from which Cyber cafe he took Ex.P.5 print outs and absolutely no certificate under Sec.65(b) of Evidence Act is produced with said documents. In cross examination by defence side even PW2 admits that, there was default in payment of chit amount and he has denied that, despite his request to give aforesaid said chit amounts, the accused has refused to do so. PW2 has also denied suggestions that, on 12.01.2016 he had kidnapped accused with two other persons, he has assaulted threatened him and took his signatures on blank papers and two blank cheques. However PW2 admitted that, accused 9 C.C.No. 19456/2016 has filed a case of kidnapping on 25.01.2016 and present case is filed on 30.01.2016. This aspect raises doubt to believe that, this case is filed as counter blast to above case. The entire evidence of this witness is denied by defence side and it is suggested to him that, though the accused has not sent any objectionable messages, he has forcibly obtained Ex.P.4 from him and filed this case as counter blast to the complaint filed by accused. It is further suggested to him that, this false case is filed to extract money from accused. PW2 has denied these suggestions. However though the PW2 is signatory to Ex.P.2 mobile seizure mahazar, he has not whispered about it nor he has identified his signature over said document. Though prosecution had filed application to recall said witness for marking his signature on said mahazar, same is rejected by this court by order dated 08.11.2021 as he has not whispered anything about said document. Hence the evidence of PW2 appears to be inconsistent with version of PW1 and it does not inspire confidence of the court to prove the guilt of the accused. 10
C.C.No. 19456/2016
10. P.W.3 M.H. Manjunath Swami S/o. Late Huchchaiah has testified in his evidence that, while he was working as HC in Nandini layout Police station on 16.04.2016, as per direction of his PI, he went to Truth Lab situated in Manipal Center and brought an article under sealed cover and thereafter produced it before P.I. Further he has identified said article as per M.O.1 mobile phone, which is seized from PW1. However evidence of this witness is not challenged by defence side by way of cross examination.
11. P.W.4 Jawaregouda S/o. Gangaiah has testified in his evidence that, while he was working as HC in Nandini layout P.S., on 08.02.2016, he was deputed to arrest accused along with CW7, they arrested accused near Malleshwaram Circle and produced him before police station as per Ex.P.6 Report. He has identified his signature on said report as per Ex.P.6(a). In cross examination entire evidence of this witness is also denied by defence side. However 11 C.C.No. 19456/2016 evidence of PW3 and PW4 does not help the prosecution in any manner to prove the guilt of the accused.
12. P.W.5, S. Srikant S/o. Late Shivaramu, who is I.O. of this case has testified that, while he was working as PSI of Nandini Layout Police station on 30.01.2016, when he was SHO of said P.S. at 6.45 p.m. C.W.1 lodged a written information, he received the same and registered the case in their PS Cr.No.23/2016. He has identified Ex.P.1 information and his signature on it as per Ex.P.1(a). He has further identified FIR issued by him as per Ex.P.7 and his signature on it as per Ex.P.7(a) and testified with regard to seizure of MO1 mobile phone from CW1 under Ex.P.2 mahazar. He has further testified that, on the next day he visited the house of CW1, conducted spot mahazar as per Ex.P.3 and received apology letter said to have been given by accused to CW1 as per Ex.P.4. PW5 has further testified with regard to production of accused before him on 08.02.2016 by CW7 and CW8 as per Ex.P.6 report, his 12 C.C.No. 19456/2016 production before court and forwarding of MO1 mobile phone to Truth Lab for expert opinion. He has further testified with regard to receiving of mobile phone from said lab, recording statements of CW4, 5 and 9 and handing over further investigation of the case to PW6. He has identified seized mobile phone of PW1 as per MO1, Report of Truth Lab as per Ex.P.8 and his signature on it as per Ex.P.8(a).
13. In cross examination by defence side PW5 has stated that, he did not send the seized mobile to FSL as it could result into delay and though he asserts to have obtained permission from his superiors, he has not produced any such documents. Further the reason assigned by PW5 in forwarding MO1 mobile phone to private lab instead of FSL is not convincing in the absence of materials to show the delay. Further PW5 has clearly admitted that, he did not forward Ex.P.4 apology letter said to have been issued by accused to handwriting expert to ascertain the accused himself has written it. He has denied that, he was bound to collect his specimen handwriting. Further PW5 has 13 C.C.No. 19456/2016 admitted that, he has got collected any documents to show that, the MO1 phone belongs to CW1 and he denies that, it does not belongs to her. PW5 has clearly admitted that, he has not produced any documents of any service provider to show that particular cell numbers belonged to CW1 and accused. It is suggested to him that, he has created Ex.P.2 and Ex.P.3 mahazars and he has not seized mobile phone of CW1. Entire evidence of this witness is also denied by defence side.
14. Finally prosecution has got examined the other IO PW6 Sadananda Manjegowda and he has testified with regard to filing of charge-sheet against the accused. His evidence is denied by defence side by suggesting that, he has filed false charge-sheet against the accused.
15. Thus on perusal of entire evidence of prosecution, it shows that PW1 and PW2 clearly admit that, though the PW1 has subscribed chits in a company where accused No.1 was assistant 14 C.C.No. 19456/2016 manager, she has become defaulter in payment of chit amount and she has pleaded ignorance to suggestion that, PW2 had insisted accused to pay said amount. Further PW2 himself has clearly admitted in cross examination that, accused has filed kidnap case against him before same police station just about five days prior to lodging of this case by PW1. It further shows that, the PW1 has admitted to have filed two cheque bounce cases against the accused in the year 2015 itself and on the other hand the accused asserts to have issued blank cheques under force coercion during his kidnap. These all aspects clearly show that, there is serious rivalry between parties and several cases have been filed by each other. Further when PW1 has already lodged criminal cases in the year 2015 itself, question of conversation of accused with PW1 by sending above messages during end of 2015 or during January of 2016 appears to be doubtful.
16. Further the investing evidence has not secured the other mahazar witness of Ex.P.2 and 15 C.C.No. 19456/2016 both panchas of Ex.P.3 mahazar to prove seizure of MO1 mobile phone and Ex.P.4 apology letter to the satisfaction of the court. Further as rightly argued by counsel for accused, the reason assigned by IO in forwarding MO1 mobile phone to private lab in not convincing and CW10 assistant director of Truth Lab is also not secured by prosecution despite coercive step. Further though Ex.P.8 report of Truth Lab reveals that, certain messages were received to mobile phone number 9986704715, the said report is not sufficient to prove that, the above mobile phone belongs to CW1 and the above messages were sent by accused himself. Further as rightly argued by counsel for accused, the IO has not secured any document from service provider to prove that, the aforesaid mobile phones belongs to CW1 and accused. Further as rightly argued by him the mobile phone of the accused is not seized and referred to expert by IO to confirm that, the alleged offensive messages were forwarded by accused.
17. Further as rightly argued by counsel for 16 C.C.No. 19456/2016 accused, PW2 has not stated as to on which Cyber cafe he got printed Ex.P.5 print outs and said documents are also not supported with certificate under 65(b) of Evidence Act. Further as rightly argued by him the IO has also not proved seizure of Ex.P.4 apology letter nor he has taken any steps to prove that, the accused himself has written it admitting to have to sent objectionable messages to PW1. For these reasons the case of prosecution is surrounded with serious suspicions. The evidence of PW1 is not corroborated with cogent evidence of other witnesses and even CW4 and CW5 who are said to be independent witnesses cum panchas of Ex.P.3 mahazar as they have not stepped into the witness box. For there reasons the evidence adduced by prosecution has not inspired the confidence of the court to believe that the accused has sent objectionable or obscene messages to PW1 as per case of prosecution. Hence prosecution has failed to prove beyond all reasonable doubts that accused has committed offences punishable under Sec.67 17 C.C.No. 19456/2016 and 67(a) of Information Technology Act. Hence point no.1 and 2 are answered in the Negative.
18. 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 is acquitted for offences punishable under Sec.67 & 67(A) of Information Technology Act, 2000.
The bail bond and surety bond executed by accused shall continue for a period of two months from the date of this order and thereafter same shall stand canceled automatically.
Seized M.O.1 LG Mobile Phone shall be returned to PW 1 after expiry of appeal period. (Typed by the stenographer directly on computer, revised, corrected by me and then pronounced in open court on this the 17 th day of November 2021).
Sd/-
(Anand T Chavan)
1st Addl. CMM., Bengaluru
ANNEXURE
List of witnesses examined for prosecution :-
PW1 : Sandya .S
18
C.C.No. 19456/2016
PW2 : Manjunath Gowda
PW3 : M. H. Manjunathaswamy
PW4 : Javaregowda
PW5 : S. Srikanth
PW6 : Sadananda
List of exhibits marked for prosecution :-
Ex.P.1 : Complaint Ex.P.1(a) : Signature of PW1 Ex.P.2 : Seizure mahazer Ex.P.2(a) : Signature of PW1 Ex.P.2(b) : Signature of PW5 Ex.P.3 : Spot mahazer Ex.P.3(a) : Signature of PW1 Ex.P.3(b) : Signature of PW5 Ex.P.4 : Letter Ex.P.5 : Printed mobile messages Ex.P.6 : Report given by PW4 Ex.P.7 : F.I.R Ex.P.7(a) : Signature of PW5 Ex.P.8 : Truth Lab report Ex.P.8 : Signature of PW5 List of material object : M.O.1 : LG Mobile
List of Witnesses examined for defence:-
NIL List of documents marked for defence:-
NIL Sd/-
1st Addl. CMM., Bengaluru.