Namballa Gopi Chakravarthi vs The State Of Telangana
2022 Latest Caselaw 108 Tel

               HON'BLE SRI JUSTICE K. LAKSHMAN

                 CRIMINAL PETITION No.73 OF 2019
ORDER:

Heard Mr. D.V. Sitarama Murthy, learned Senior Counsel

representing Ms. M. Suguna, learned counsel for the petitioner and

learned Assistant Public Prosecutor appearing on behalf of the

respondent No.1 - State. Despite service of notice, there is no

representation on behalf of respondent No.2.

2. The present Criminal Petition is filed to quash the proceedings

in C.C. No.272 of 2018 on the file of XII Additional Chief Metropolitan

Magistrate, Hyderabad.

3. The petitioner herein is sole accused in the above C.C. The

offences alleged against him are under Sections - 419 and 420 of IPC and

Sections - 66C and 66D of the Information Technology Act, 2008 (for

short 'I.T. Act'').

4. The allegations levelled against the petitioner herein are that he

is the husband of respondent No.2. There are matrimonial disputes

between them. Due to the said disputes, the petitioner herein wanted to

hurt respondent No.2 financially and, therefore, he had transferred an

amount of Rs.5,00,000/- from her account in IDBI Bank through

National Electronic Funds Transfer (NEFT) without her knowledge.

Thus, the petitioner herein has cheated her.

5. With the above said allegations, respondent No.2 has lodged a

complaint dated 27.10.2017 with Police, Cyber Crimes, Hyderabad, who

KL,J Crl.P. No.96 of 2021

in turn registered a case in Crime No.275 of 2017 for the aforesaid

offences. After completion of investigation, the Investigating Officer has

filed charge sheet against the petitioner herein and the same was taken on

file vide C.C. No.272 of 2018.

6. During the course of investigation, the Investigating Officer has

recorded the statements of respondent No.2 as LW.1, the Bank Managers

/ Officials as LWs.2 and 3, obtained statement of account of respondent

No.2 and also the Passport details of the petitioner herein.

7. The learned senior counsel would submit that respondent No.2,

wife of the petitioner, herself furnished the OTP number to the petitioner

herein and on furnishing the said OTP number only, the transaction has

completed successfully. Without furnishing the OTP number, transaction

could not have been completed successfully. Therefore, there is no

inducement of respondent No.2 by the petitioner and there is no cheating

as alleged.

i) The learned senior counsel has also placed reliance on the RBI

Regulations dated 22.06.2001, more particularly, Regulation No.7.5.2.

Referring to Sections - 66C and 66D of the I.T. Act, the learned senior

counsel would submit that the same lacks the ingredients of the aforesaid

offences. Respondent No.2 has not lodged any complaint to the bank and

there is no message.

ii) With the above said submissions, the learned senior counsel

sought to quash the proceedings against the petitioner in the aforesaid

C.C.

KL,J Crl.P. No.96 of 2021

8. On the other hand, the learned Assistant Public Prosecutor

would contend that there are specific allegations against the petitioner

and the Investigating Officer, on consideration of the entire evidence,

both oral and documentary, laid the charge sheet against the petitioner

herein for the aforesaid offences. There are triable issues. The petitioner

herein instead of facing trial filed the present petition to quash the

proceedings in the above C.C. The contentions raised by the learned

senior counsel are triable issues which may not be considered in a

petition filed under Section - 482 of Cr.P.C.

i) With the above said submissions, he sought to dismiss the

present petition.

9) The above rival submissions and perusal of the record would

reveal that there is no dispute that respondent No.2 and the petitioner are

wife and husband and there are matrimonial disputes between them.

Presently, the petitioner is staying in United States of America (USA). It

is also not in dispute that respondent No.2 is holder of Account in IDBI

Bank, Ameerpet Branch vide A/c No.0426104000139427. She is also

having Debit Card with No.6074194260108195. She is having Net

Banking Facility with e-mail ID [email protected]

10. According to respondent No.2, she received a message on her

registered mobile No.9441419526 on 24.10.2017 in the morning hours

stating that an amount of Rs.2,50,000/- was transferred from her account

through Net Banking which she had not done. On 24.10.2017, she had

contacted the Customer Care of IDBI Bank and got blocked her Net

KL,J Crl.P. No.96 of 2021

Banking facility. According to her, surprisingly, on 25.10.2017 in the

morning, she had received another message on her above mobile number

that an amount of Rs.2,50,000/- was transferred from her account through

Net Banking. Thus, a total amount of Rs.5.00 lakhs was transferred from

her account through Net banking which she could not do.

11. It is also relevant to note that during the course of

investigation, the Investigating Officer has recorded the statement of

respondent No.2 as LW.1 on 27.10.2017 and thereafter she was re-

examined on 30.10.2017. The Investigating Officer has also collected

information from the above said bank. Considering the said statements

of LWs.1, 2 and 3 and also on perusal of the documentary evidence

collected by the Investigating Officer, he has laid the charge sheet against

the petitioner herein for the aforesaid offences.

12. It is relevant to note that Section - 66C of the I.T. Act deals

with 'punishment for identity theft' which says that 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 with may

extend to rupees one lakh. Section - 66D deals with 'punishment for

cheating by personation by using computer resource' and as per which,

whoever, by means for any communication device or computer resource

cheats by personating, 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.

KL,J Crl.P. No.96 of 2021

13. Section 419 of IPC deals with 'punishment for cheating by

personation' and as per which, whoever cheats by personation shall be

punished with imprisonment of either description for a term which may

extend to three years, or with fine, or with both. Section - 420 of IPC

deals with 'cheating and dishonestly inducing delivery of property' and

as per which, whoever cheats and thereby dishonestly induces the person

deceived to deliver any property to any person, or to make, alter or

destroy the whole or any part of a valuable security, or anything which is

signed or sealed, and which is capable of being converted into a valuable

security, shall be punished with imprisonment of either description for a

term which may extend to seven years, and shall also be liable to fine.

14. It is relevant to note that as per Regulation No.7.5.2 of the RBI

Regulations, dated 22.06.2001, while availing the Internet Banking

services, the customers are allotted proper User ID, passwords and/or

personal identification numbers and/or the other agreed authentication

procedure to access the Internet banking service and only users with such

access methodology and in accordance with the agreed procedure are

authorized to access the internet banking services. In other words, a third

party would not be able to withdraw money from an account or access

the account of the customer unless the customer had divulged his/her

password in the first place.

15. As discussed above, it is the specific case of respondent no.2

that the petitioner herein, her husband, who is having matrimonial

dispute with her, with an intention to hurt her financially, transferred the

above said amount of Rs.5.00 lakhs from her account without her

KL,J Crl.P. No.96 of 2021

knowledge and consent using Electronic Device. There is no mention

about the receipt of OTP number to the mobile number of respondent

No.2. She has specifically mentioned the date, account number, e-mail

ID, Debit Card number etc. in her complaint dated 27.10.2017 and also in

her statement recorded under Section - 161 of Cr.P.C. She has received

only messages on 27.10.2017 stating that an amount of Rs.2,50,000/- was

transferred from her account through Net Banking. She has contacted the

Customer Care of IDBI Bank and got blocked her Net Banking facility.

Even then, on 25.10.2017, she received another message to the very same

mobile number stating that an amount of Rs.2,50,000/- was transferred

from her account through Net Banking.

16. She has also specifically stated that there are matrimonial

disputes between the petitioner and her and that the petitioner is staying

in USA. There are no talking terms between them. The Investigating

Officer informed her that an amount of Rs.5.00 lakhs was transferred to

CITI Bank in the name of the petitioner herein from her account. The

learned senior counsel referring to the e-mail dated 08.06.2013 and bank

transactions, would submit that the petitioner herein had transferred

certain amounts to respondent No.2 and there are cordial relations

between them. Referring to various circumstances and procedure to

operate net banking service, learned senior counsel would submit that all

the said circumstances make the allegations inherently improbable and in

support of his contention, he has placed reliance on the principle laid

down in State of Haryana v. Ch. Bhajan Lal1. But, as discussed supra,

. AIR 1992 SC 604

KL,J Crl.P. No.96 of 2021

prima facie, there are specific allegations against the petitioner herein in

the charge sheet. The defences of the accused and the statements of the

witnesses recorded under Section - 161 Cr.P.C. cannot be relied upon by

this Court in a petition under Section - 482 of Cr.P.C. The petitioner

herein has to take the said defences during the trial and prove his

innocence. Thus, there are several triable issues, which have to be

decided only after full-fledged trial, but not in a petition under Section -

482 of Cr.P.C. Thus, prima facie, there are specific allegations against

the petitioner herein which are triable in nature. The petitioner has to

face trial and prove his innocence. Instead of facing trial, the petitioner

has filed the present petition to quash the proceedings in the aforesaid

C.C.

17. The Apex Court in Kamal Shivaji Pokarnekar v. The State

of Maharashtra2 has categorically held that quashing criminal

proceedings was called for only in a case where complaint did not

disclose any offence, or was frivolous, vexatious, or oppressive. If

allegations set out in complaint did not constitute offence of which

cognizance had been taken by Magistrate, it was open to the High Court

to quash the same. It was not necessary that, a meticulous analysis of

case should be done before trial to find out whether the case would end in

conviction or acquittal. If it appeared on a reading of the complaint and

consideration of allegations therein, in light of the statement made on

oath that the ingredients of the offence are disclosed, there would be no

. AIR 2019 SC 847

KL,J Crl.P. No.96 of 2021

justification for the High Court to interfere. The defences that might be

available, or facts/aspects which when established during trial, might lead

to acquittal, were not grounds for quashing a complaint at the threshold.

At that stage, the only relevant question was whether averments in the

complaint spell out ingredients of a criminal offence or not. The Court

has to consider whether complaint discloses any prima facie offences that

were alleged against the respondents. Correctness or otherwise of the

said allegations has to be decided only during trial. At the initial stage of

issuance of process, it was not open to Courts to stifle proceedings by

entering into merits of the contentions made on behalf of the accused.

Criminal complaints could not be quashed only on the ground that,

allegations made therein appear to be of a civil nature. If ingredients of

offence alleged against Accused were prima facie made out in complaint,

criminal proceeding shall not be interdicted.

18. In Skoda Auto Volkswagen India Private Limited v. The

State of Uttar Pradesh3, the Apex Court referring to the earlier

judgments rendered by it has categorically held that the High Courts in

exercise of its inherent powers under Section - 482 of Cr.P.C has to

quash the proceedings in criminal cases in rarest of rare cases with

extreme caution.

19. In view of the above said discussion and also the principle laid

down by the Hon'ble Supreme Court, the petitioner failed to make out

any case to quash the proceedings. Thus, this Court is not inclined to

. AIR 2021 SC 931

KL,J Crl.P. No.96 of 2021

quash the proceedings in C.C. No.272 of 2018 against the petitioner and

the present criminal petition is liable to be dismissed.

20. The present Criminal Petition is accordingly dismissed.

As a sequel, miscellaneous petitions, if any, pending in the

criminal petition shall stand closed.

__________________ K. LAKSHMAN, J 17th January, 2022 Mgr