Namballa Gopi Chakravarthi vs State Of Telangana

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.

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.

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’’).

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.

With the above said allegations, respondent No.2 has lodged a complaint dated 27.10.2017 with Police, Cyber Crimes, Hyderabad, who 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.

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.

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.

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].

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 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.

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.

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.

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.

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.

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 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.

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 Lal AIR

1992 SC 604. But, as discussed supra, 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.

The Apex Court in Kamal Shivaji Pokarnekar v. The State of Maharashtra AIR 2019 SC 847 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 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.

In Skoda Auto Volkswagen India Private Limited v. The State of Uttar Pradesh AIR 2021 SC 931, 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.

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

criminal petition is liable to be dismissed.

The present Criminal Petition is accordingly dismissed.

As a sequel, miscellaneous petitions, if any, pending in the criminal petition shall stand closed.