Sunkara Partha Saradhi vs The State Of Telangana
2022 Latest Caselaw 2328 Tel

  THE HONOURABLE SRI JUSTICE K. LAKSHMAN

      CRIMINAL PETITION No. 12497 OF 2018

ORDER:

Heard Sri V. Ravi Kiran Rao, learned Senior

Counsel representing learned Counsel for the

petitioner, and Sri T.S. Anirudha Reddy, learned

Counsel representing the 2nd respondent, and learned

Public Prosecutor.

2. This petition is filed under section 482 of

Code of Criminal Procedure to quash the proceedings

in C.C.No.294 of 2018 pending on the file of XII

Additional Chief Metropolitan Magistrate, Hyderabad.

3. The petitioner herein is the sole accused in

the said C.C. The offence alleged against the

petitioner is under section 66-C of Information

Technology Act 2008.

4. As per the charge sheet, the allegations

levelled against the petitioner herein are that the Crl. P. No.12497 of 2018

petitioner herein and 2nd respondent are wife and

husband. Their marriage was performed on

14.12.2014. They have lived happily for a short

period. Thereafter, matrimonial disputes arose

between them. The 2nd respondent was pregnant.

Due to the above said matrimonial disputes, she

stayed with her parents.

4.1 In the month of October 2015, the petitioner

herein came to about the pregnancy of the 2nd

respondent and that she is taking treatment Fernandez

Hospital at Hyderguda. He wanted to get medical

reports of the 2nd respondent. The Hospital Authorities

refused to provide the said reports to the petitioner

herein. Therefore, the petitioner herein with an

dishonest intention, created two E-mail IDs styled as

(1) [email protected] & (2)

[email protected] in the name of 2nd

respondent in the year 2015. He has been using them

for his personal use. He has sent a mail to the Crl. P. No.12497 of 2018

Fernandez Hospital to their mail ID

[email protected] posing himself as

LW.1 and requested them to provide medical reports of

2nd respondent.

4.2 it is further alleged against the petitioner

herein that for the past two years he has been using

the above said e-mail IDs using the name of 2nd

respondent though the petitioner and 2nd respondent

are not staying together for the last three years. Thus,

the petitioner herein had dishonestly created fake e-

mail accounts, committed identity theft of 2nd

respondent and committed the offence under Section

66( C ) of I.T. Act 2008.

5. Referring to the contents of charge sheet,

complaint and also the statements of witnesses

recorded under Section 161 of Code of Criminal

Procedure, Sri V. Ravi Kiran Rao, learned Senior

Counsel, would submit that the same lack the

ingredients of the offence alleged against the petitioner Crl. P. No.12497 of 2018

herein. Due to the matrimonial disputes, the 2nd

respondent implicated the petitioner herein in the

above said crime. The Investigating Officer has not

conducted the investigation properly and laid charge

sheet against the petitioner herein. Learned

Magistrate without considering the same, took the

cognizance of the said charge sheet. The 2nd

respondent has also filed several petitions and

complaints against the petitioner herein, the same are

also pending. Thus, the 2nd respondent is harassing

the petitioner herein on one reason or the other and in

the said course, she has implicated the petitioner in

the present false case. There is no fraudulent or

dishonest intention by the petitioner herein even as per

the contents of the charge sheet. There is delay in

lodging the complaint.

6. Whereas learned Counsel for the 2nd

respondent would submit that there are specific

allegations against the petitioner herein and the Crl. P. No.12497 of 2018

contents of complaint and statements of the witnesses

recorded under Section 161 of Code of Criminal

Procedure constitute the offence alleged against the

petitioner herein. He has created said e-mail IDs with

dishonest intention to obtain information from the

above said Hospital and he has been using the same

for several other purposes.

The learned Public Prosecutor also adopted the

said arguments.

7. The above said facts would reveal that the

marriage of the petitioner with the 2nd respondent was

performed on 14.12.2014, thereafter the matrimonial

disputes arose between them. The petitioner herein

had filed a petition seeking dissolution of the said

marriage vide O.P.No.1768 of 2017 on the grounds of

cruelty and desertion. The 2nd respondent herein had

also filed a petition in O.P. No.1297 of 2017 seeking

dissolution of the marriage on the grounds of cruelty Crl. P. No.12497 of 2018

and desertion. The same was transferred and new

number was given. She has also filed a petition under

Section 12 of Domestic Violence Act vide D.V.C. No.

230 of 2017. She has filed a complaint with Women

Police Station Charminar and the Investigating Officer

registered a case in Crime No.120 of 2017 for the

offences under Sections 498-A and 506 r/w 34 IPC

and also under Sections 4 and 6 of Dowry Prohibition

Act.

8. In the present proceedings, the allegation

against the petitioner herein is that he has created the

above said e-mail IDs with a dishonest intention to

obtain the medical report of the 2nd respondent from

Fernandez Hospital including the status of defrosters

and he has used the same without the consent of the

2nd respondent. In view of the said allegation, it is

relevant to mention Section 66( C ) of IT Act. Section

66( C ) deals with punishment for identity theft and it

is as follows:

Crl. P. No.12497 of 2018

"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 extent to three years and shall

also be liable to fine which may extent to

Rs.1,00,000/-."

9. Thus, to constitute the said offence, there

should be fraudulent or dishonest intention for making

use of electronic signature, password or any other

unique identification feature. As discussed supra, in

the present case, prima facie there is specific allegation

against the petitioner herein. He has created the above

said two e-mail IDs by impersonating the 2nd

respondent and without her consent he tried to obtain

the above said information from the Fernandez

Hospital. Accordingly, he has sent e-mail to the mail

ID of the said Hospital. It is also relevant to note that

by the time of sending the mail to the Fernandez Crl. P. No.12497 of 2018

Hospital, the petitioner and 2nd respondent are staying

separately due to the matrimonial disputes.

10. The Investigating Officer has recorded the

statement of 2nd respondent as LW.1, the Manager of

the said Fernandez Hospital as LW.2, the Nodal

Officer, who provided the IP details of the accused, as

LW.3, the Nodal Officer of BSNL, who provided the

CDRs of the accused mobile number as LW.4. He has

also obtained FSL report from LW.7 and his statement

was also recorded. On consideration of the said

statements of the witnesses recorded under Section

161 Cr.P.C., the Investigating Officer has laid the

charge sheet. Thus, the petitioner herein tried to

obtain medical reports of the 2nd respondent with

regard to pre-natal treatment taken by her from the

date of her conceive to the date of delivery i.e. on

17.11.2015. Thus, the petitioner herein has

committed the said offence and the same is supported

by the statements of above said witnesses. Thus, Crl. P. No.12497 of 2018

prima facie the contents of the complaint, statements

of above said witnesses and charge sheet constitute

the above said offence against the petitioner herein.

11. The defences taken by the petitioners herein

are triable issues and the petitioner herein has to take

the same before the trial Court during the course of

trial and the same cannot be considered in a petition

under Section 482 of Code of Criminal Procedure. The

said principle was also held by the Apex Court in

Kamal Shivaji Pokarnekar v. The State of

Maharashtra1, wherein the Apex Court 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

. AIR 2019 SC 847 Crl. P. No.12497 of 2018

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 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 Crl. P. No.12497 of 2018

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.

12. In Skoda Auto Volkswagen India Private

Limited v. The State of Uttar Pradesh2, 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.

13. As discussed supra, the case on hand is not

a rarest of the rare case to quash the proceedings

against the petitioner herein. Prima facie there is

specific allegation against the petitioner herein; this

Court is not inclined to quash the proceedings in C.C.

. AIR 2021 SC 931 Crl. P. No.12497 of 2018

No.12497 of 2018. The defences taken by the

petitioner herein are triable issues and petitioner is

before the trial Court and it is for the trial Court to

consider the same. In view of the said discussion, this

criminal petition is liable to dismissed.

14. In the result, the Criminal Petition is

dismissed.

15. As a sequel, Miscellaneous petitions, pending

if any in this Criminal Petition, shall stand closed.

__________________ K. LAKSHMAN, J 06.06.2022

BDR