Madras High Court
K.Bakkiyaraj vs The Deputy Superintendent Of Police on 12 August, 2022
Crl.R.C.No.856 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 12.08.2022
CORAM:
THE HONOURABLE MR.JUSTICE SUNDER MOHAN
Crl.R.C.No.856 of 217
K.Bakkiyaraj ... Petitioner
vs
The Deputy Superintendent of Police
CBCID, Cyber Crime Cell
Chennai. ... Respondent
Prayer: Criminal Revision been filed under Section 397 r/w 401 Crl.P.C.,
to set aside the conviction and sentence passed against the appellant on
05.02.2016 in C.C.No.9225 of 2010 by the learned Magistrate on 11 th
Metropolitan Court at Saidapet, which is confirmed in C.A.No.60 of 2016
by the learned XVI Additional Sessions Judge, Chennai and call for
records.
For Petitioner : Mr.S.Arivazhagan
and MA Mathew Berchmans
For Respondent : S.Sugendran
Additional Public Prosecutor
ORDER
The petitioner has filed the above revision challenging the order of the learned XVI Additional Sessions Judge, Chennai in Crl.A.No.60 of 1/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 2016 confirming the Judgment of the learned Magistrate of 11th Metropolitan Court, Saidapet in C.C.No.9225 of 2010 dated 05.02.2016.
2.The case of the prosecution was that the petitioner along with the deceased accused one Akbar Ali had committed the offence under Section 407 IPC and Section 66 IPC of the Information Technology Act r/w 109 IPC. The first accused one Akbar Ali, since deceased, was working in a courier company and he had opened a cover meant for the defacto complainant Geetha, P.W.3 which contained the welcome kit sent by the UTI Bank containing the internet password and other documents relating to the account said to have been opened by P.W.3 in UTI Bank. Using the information contained in the said cover, the first accused is said to have misappropriated a sum of Rs.2038/- (Rupees Two Thousand and Thirty Eight only) from the account of P.W.3. Out of the said sum of Rs.2038/- (Rupees Two Thousand and Thirty Eight only) the first accused sent a sum of Rs.950/-(Rupees Nine Hundred and Fifty only) to the petitioner’s Bank Account.
3.The prosecution had examined 14 witnesses and marked 22 exhibits to prove its case. During the trial, the first accused died on 2/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 18.08.2006. The trial Court after perusing the evidence of the witness and the documents on record came to the conclusion that the prosecution had not established the offences under Section 407 IPC and Section 66 IPC of the IT Act read with 109 IPC as against the petitioner. However, the trial Court found that the prosecution had established the offence under Section 411 IPC since the misappropriated amount of Rs.950/- (Rupees Nine Hundred and Fifty only) was sent to his account from the account of P.W.3 by A1 misusing the password. The trial Court found that no separate charge need be framed for the offence under Section 411 IPC and found that since it is a minor offence of the offence that was charged against him, the finding of guilt can be recorded even without a formal charge being made. The trial court relied upon Section 222 of Cr.P.C to hold that no separate charge need be framed for convicting the petitioner under Section 411 IPC.
4.The lower Appellate Court found that the trial Court had correctly come to the conclusion that the petitioner was guilty of the offence under Section 411 IPC and there was no infirmity in the Trial Court convicting the petitioner even without a formal charge.
3/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017
5.The learned counsel for the petitioner submitted that the Courts below erred in convicting the petitioner under Section 411 IPC even without framing a charge for the said offence. The offence under Section 411 IPC cannot be said to be minor offence for the offences originally charged against the petitioner. Having found that the petitioner was not guilty of the offence charged namely offence under Sections 407 IPC and 66 IPC of the Information Technology Act read with 109 IPC the Courts below ought to have acquitted the petitioner. In any event, the learned counsel for the petitioner submitted that the prosecution had not established the offence of 411 IPC as there is nothing in the evidence to suggest that the petitioner was aware of the fact that the money transferred to his account was the misappropriated amount by the first accused, though he was his friend.
6.The learned Additional Public Prosecutor submitted that the prosecution had established the offence under Section 411 IPC and there is no illegality in the Judgement of the trial Court convicting petitioner for the said offence as no prejudice was caused to the petitioner by such a procedure adopted by the trial Court. The learned Additional Public Prosecutor further submitted that the trial Court having fairly analysed the 4/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 evidence found that the petitioner was guilty of the offence under Section 411 of IPC. Therefore, the learned Additional Public Prosecutor submitted that there is no infirmity in the finding of the Courts below.
7.This Court had given anxious consideration to the rival submissions and to the evidence and the findings of the Courts below. We find that admittedly no charge was framed as against the petitioner under Section 411 IPC. In order to convict a person without any charge, the offence has to fall within the description found in Section 222 of Cr.P.C which reads as follows.
“222. When offence proved included in offence charged (1) When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and search combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it.
(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence, although he is not charged with it.
5/ 12https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 (3) when your person is charged with an offence, he may be convicted of an attempt to commit such offence although the attempt is not separately charged.
(4) Nothing in this section shall be deemed to authorise a conviction of any minor offence where the conditions requisite for the initiation of proceedings in respect of that minor offence have not been satisfied.
The Courts below had come to the conclusion that the offence under Section 411 of IPC would constitute a minor offence to the offence of Section 407 of IPC. We find that this conclusion is not in accordance with law. The offence of 411 IPC is distinct from the offence of 109 r/w 407 IPC and it would not constitute a minor offence. The ingredients of offence of 109 r/w 407 IPC and the offence of 411 IPC are totally different. The petitioner was originally charged for abetting the offence of misappropriation and the offence under Information Technology Act said to have been committed by the first accused. Abetment is defined under Section 107 IPC which reads as follows.
6/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017
107. Abetment of a thing A person abets the doing of a thing, who -
First - Instigates any person to do that thing or Secondly - Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly- Intentionally aids, by an act or illegal omission, the doing of that thing Explanation 1: A person who, by willful misrepresentation, or by willful concealment of a material fact which he is bound to disclose,voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing.
Illustration A, a public officer, is authorised by warrant from Court of Justice to apprehend Z,B, knowing that fact and also that C is not Z, willfully represents to A that C is Z and thereby intentionally causes A to Apprehend C. Here B abets by instigation the apprehension of C. Explanation 2: Whoever, either prior to or at the time of the Commission of an act, does anything in order to 7/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 facilitate the Commission of that act and thereby facilitates the Commission thereof, is said to aid the doing of that act. The above definition would clearly show that an Abettor's act is either before the actual commission of the offence or during the commission of the offence. Explanation 2 of Section 107 IPC would make that very clear. Whereas, in an offence under Section 411 IPC, the receiver of stolen property is an accessory after the fact, which means that the receiver of stolen property's participation comes only after the commission of the crime. Since the stages of the commission of these crimes are different, they have to be treated as two different offences and Section 411 IPC cannot be treated as offence which is minor to the offence charged against the petitioner originally. Therefore, the proper course for the trial Court in the event of finding that the petitioner had committed 411 IPC would have been to frame a charge under Section 411 IPC and given an opportunity to the petitioner to adduce evidence in respect of that charge. However, the trial Court has not done so in this case.
8.That apart, this Court finds that Section 222 (4) of Cr.P.C has also not been complied with. We find that there is no evidence to suggest that the petitioner had knowledge or reason to believe that the money 8/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 transferred to his account was a misappropriated amount. The Courts below held that since the misappropriated amounts were transferred from an unknown account and the petitioner had withdrawn the said amount and handed over the same to the first accused, it can be presumed that the petitioner was aware that the amount transferred to his account was misappropriated amount. The lower Appellate Court also relied upon the Illustration (a) to the Section 114 of the Indian Evidence Act.
9. The Courts below ought to have seen that such an inference or presumption alone is not sufficient to convict a person in the absence of evidence to conclusively establish the ingredients of the offence. It is trite that in a case of circumstantial evidence the prosecution has to establish conclusively the circumstances against the accused and the circumstances must point out only to the guilt of the accused. If any other reasonable hypothesis is possible then the accused has to be given the benefit of that hypothesis. In that view also the prosecution had failed to establish that the petitioner had committed the offence under Section 411 IPC.
10.Therefore, we are of the view that the Courts below had ignored the vital legal aspects with regard to the procedure to be adopted in 9/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 framing of charge and giving an opportunity before rendering a finding of guilt in respect of offences for which no charge was framed originally. That apart there is absolutely no evidence to find that the petitioner is guilty of offence under Section 411 IPC. Hence, we hold that the Judgment of the Appellate Court confirming the Judgment of the trial Court is liable to be set aside.
11.In the result, this Criminal Revision is allowed and the Judgment of the XVI Additional Sessions Judge, Chennai dated 19.10.2016 made in C.A.No.60 of 2016 is hereby set aside and the petitioner is set at liberty. The bail bond if any executed by the petitioner/accused shall stand cancelled.
12.08.2022 Index:Yes/No Web:Yes/No Speaking/Non Speaking dk 10/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 To
1. XVI Additional Sessions Judge, Chennai.
2. Magistrate of 11th Metropolitan Court, Saidapet.
3.The Deputy Superintendent of Police CBCID, Cyber Crime Cell Chennai.
4.The Public Prosecutor High Court of Madras Chennai- 600 104.
11/ 12 https://www.mhc.tn.gov.in/judis Crl.R.C.No.856 of 2017 SUNDER MOHAN,J.
dk Crl.R.C.No.856 of 217 12.08.2022 12/ 12 https://www.mhc.tn.gov.in/judis