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2020 DIGILAW 1286 (MP)

Pratik Mohapatra v. State of Madhya Pradesh

2020-12-28

ATUL SREEDHARAN

body2020
ORDER : Atul Sreedharan, J. 1. The present petition has been filed seeking quashment of the charge-sheet dated 31.12.2017 and all proceedings consequential thereto. The charge-sheet arises from the FIR bearing Crime No. 136/2016 dated 22.10.2016 registered against the Petitioner for offences punishable under section 419 IPC and section 66-D of the IT Act at PS Cyber and Hi-tech Crime, Bhadbhada, Bhopal. The charge-sheet was eventually filed under sections 419, 468 and 471 IPC read with section 66-D of the Information Technology Act. 2. The case was committed to the Court of Sessions and made over to the Court of the Third Additional District and Sessions Judge, Bhopal, and was registered as ST No. 184/2018. Charges were framed by an order dated 11.1.2019 by the learned Trial Court under sections 419, 468, 471 and 467 IPC and under section 66-D of the Information Technology Act. 3. Briefly stated, facts of the case are as follows. The complainant, who is the Respondent No. 2 herein, and the Petitioner studied together at the National Law Institute University, Bhopal, and completed their studies in the year 2010. The Petitioner is stated to have joined a top law firm in Delhi and was working there, whereas the complainant could not find a job despite her best endeavours, as so stated by the Petitioner. It is also the case of the prosecution that the families of the Petitioner and the complainant were in talks with each other regarding the marriage of the Petitioner and the complainant which however could not materialize. 4. In the year 2013, the complainant is said to have started working on a contractual basis with D.L.A Piper, a Singapore based law firm. In December 2013, the complainant is stated to have resigned from her contractual position with the said Company and returned to India. According to the State, the Petitioner assured the complainant that he would have her placed in a well-reputed job and that in furtherance to the said assurance, the complainant was promised several projects for the State Street Bank Trust (hereinafter referred to as "the SSBT") and other organizations. It is further the case of the State that the salary that was meant for the complainant was not transferred into her account directly by the client but into the account of the Petitioner, who thereafter transferred it into the account of the complainant. It is further the case of the State that the salary that was meant for the complainant was not transferred into her account directly by the client but into the account of the Petitioner, who thereafter transferred it into the account of the complainant. The complainant is stated to have tried moving to Singapore once again to work with the SSBT which did not work out. However, it is unequivocally admittedly by the State that several lacs of rupees were transferred from the bank account of the Petitioner to the bank account of the complainant. 5. It is alleged that the Petitioner created various fake email IDs and thereafter offered jobs from various fictitious companies/international organizations allegedly to deceive the complainant and get monetary benefit out of the work done by her. The Petitioner states that he has not received a single penny from any of the companies or international organizations whatsoever instead, he has transferred his hard-earned salary to the complainant only with a motive of helping her through a difficult patch on account of "their affections and long-standing emotional relationships" (as stated by the Petitioner in paragraph 8 of his petition). It is further alleged by the prosecution that on 1.6.2014 the parents of the Petitioner visited the complainant's house to talk about their marriage. However, as the complainant was unemployed and the recent demise of her father, the complainant's family could not fulfil the alleged demands of the Petitioner and his family which resulted in the deferment of their marriage. As regards this allegation, the Petitioner states that neither he nor his family members made any monetary demand, or a demand of any other nature on the complainant and her family. The Petitioner on his part alleges that he and his family were treated with the utmost disrespect by the complainant and refused to entertain the Petitioner's proposal for marriage. During investigation, the Petitioner was released on anticipatory bail by this court. 6. According to the Petitioner, a perusal of the complete charge-sheet and the material available on record and taking the same to be true, no case is made out against the Petitioner for having committed offences punishable under sections 419, 467, 468 and 471 IPC read with section 66-D of the Information Technology Act. 6. According to the Petitioner, a perusal of the complete charge-sheet and the material available on record and taking the same to be true, no case is made out against the Petitioner for having committed offences punishable under sections 419, 467, 468 and 471 IPC read with section 66-D of the Information Technology Act. The Petitioner states that the allegations against him are frivolous and motivated and the same arise from a feeling of personal vengeance due to a failed relationship. The Petitioner further submits that it was the complainant who refused marriage in 2014 notwithstanding the same, she actively stayed in touch with the Petitioner to find her a job which the Petitioner alleges was presumably to extract money from him and his family. The Petitioner further states that his bank statements make it evident that the only amount he received was his salary and there were no other sources of income. The Petitioner also alleges that till such time the Petitioner kept on transferring funds to the complainant on account of enduring emotional attachment, the complainant was not bothered and continued to defer any talks of marriage between the Petitioner and the complainant on one pretext or the other. Finally, the Petitioner states on account of facing constant rejection, mental harassment and being left in a financially dire strait after having transferred lacs of rupees to the complainant, sometime, around middle of 2015, the Petitioner decided not to entertain any further demands of the complainant as there was no possibility of marriage between the complainant and the Petitioner and stopped transferring funds to the complainant. 7. The Petitioner further alleges that when the complainant stopped receiving funds from the Petitioner, she started harassing the Petitioner and resorted to extortive measures to fulfil her demands. It is also alleged that Petitioner received multiple calls from the Complainant, threatening the Petitioner and his family members with dire consequences including the threat of being implicated in false and frivolous cases, unless the Petitioner continues to make financial payments to the complainant. The Petitioner also refers to an instance where the complainant allegedly made several attempts to. extort money and immovable property from him and his parents for which the Petitioner had filed a complaint at PS Madhu Vihar, Delhi, on 21.5.2016. He alleges that he was wrongfully confined by the complainant and her. family members on 3.5.2016 who were demanding Rs. The Petitioner also refers to an instance where the complainant allegedly made several attempts to. extort money and immovable property from him and his parents for which the Petitioner had filed a complaint at PS Madhu Vihar, Delhi, on 21.5.2016. He alleges that he was wrongfully confined by the complainant and her. family members on 3.5.2016 who were demanding Rs. 90,00,000/-, a Worli Sea-Facing flat or money from the complainant's father, failing which the Petitioner would face dire consequences and imprisonment. It is also alleged that the complainant threatened to commit suicide to pressurize the Petitioner and his family members to keep making financial payments to the complainant. The Petitioner has also filed a transcript of the call-recordings along with a certificate under section 65-B of the Indian Evidence Act which has been filed along with the petition as Annexure P/6. 8. The Petitioner says that he is aggrieved by the conduct of the police to whom the transcripts of the call-recording and other relevant documents in his defence were handed over but the police authorities took no steps to investigate into the same. It is further alleged that the complainant had called up the father of the Petitioner Mr. P.K. Mohapatra and demanded immovable properties and valuable securities failing which she would send the Petitioner to jail for ten years. The father of the Petitioner is alleged to have filed a criminal complaint at PS Parliament Street on 30.5.2016 and all such call-recordings and their transcripts were handed over to the Investigating Officer, and that the complainant has the knowledge of the same. 9. The complainant, though made a party by an order of this Court and though being represented by a counsel, has not filed a counter affidavit or a reply to the quash petition. The opposition has been the oral submission of the Complainant's learned counsel, Mr. Sumit Raghuvanshi. 10. Broadly, the case of cheating sought to be made out by the complainant is that the Petitioner prevented the complainant from finding work on her own and by giving false assurances kept her bound to him and ensured that she did not work for anyone else but only for him and, therefore, has exploited her. Sumit Raghuvanshi. 10. Broadly, the case of cheating sought to be made out by the complainant is that the Petitioner prevented the complainant from finding work on her own and by giving false assurances kept her bound to him and ensured that she did not work for anyone else but only for him and, therefore, has exploited her. It is also submitted by the learned counsel for the Respondent No. 2 that the Petitioner, in order to fulfil his devious intention of ensuring that the Respondent No. 2 worked only for him, created several fictitious emails from which work was outsourced by the Petitioner to the Respondent No. 2, and for which work she was paid by the Petitioner from his account by allegedly misinforming the Complainant that the clients and agencies were actually clients of the company where the Petitioner was employed as a counsel and, therefore, those clients and institutions could not pay her directly and instead had to pay her through the account of the Petitioner. 11. The learned counsel for the Respondent No. 2 has not dwelt much upon the personal relationship between the Petitioner and the Respondent No. 2 but has submitted that the said FIR has not been registered by her as backlash for a relationship having gone wrong. He has further stated that had it not been for a misrepresentation and cheating by the Petitioner, the Respondent No. 2 would have sought newer pastures and would have risen more rapidly in her career and profession, independently on her own. 12. Learned counsel for the Respondent No. 2 has also stated that the elaborate FIR that has been registered by the Respondent No. 2 against the Petitioner clearly discloses all the offences for which he has been charged with including the offence under section 66-D Information Technology Act. It is also submitted by the learned counsel for the Respondent No. 2 that had it not been for the Petitioner, the Respondent No. 2 would have earned more money in the same number of years that she had worked. 13. Learned counsel for the Petitioner on the other hand submits that the Respondent No. 2 has received Rs. 19,56,000/- (rupees nineteen lakhs and fifty-six thousand) from the Petitioner through his account paid into the account of Respondent No. 2. 13. Learned counsel for the Petitioner on the other hand submits that the Respondent No. 2 has received Rs. 19,56,000/- (rupees nineteen lakhs and fifty-six thousand) from the Petitioner through his account paid into the account of Respondent No. 2. This fact has not been disputed by the learned counsel for the Respondent No. 2, who has only countered the same by saying that had it not been for the Petitioner, the Respondent No. 2 would have earned nearly Rs. 90,00,000/- (rupees ninety lakhs) in the three years, during which time work was extracted by the Petitioner from the Respondent No. 2 instead for only about Rs. 20,00,000/- (rupees twenty lakhs). No precise amount of loss has been stated by the learned counsel for the Respondent No. 2 except for giving a speculative figure. The provisions of law under which the Petitioner has been charged are sections 419, 467, 468 and 471 of the IPC and section 66D of the Information Technology Act. 14. Keeping the allegations against the Petitioner in the backdrop, the Court proposes to examine the provisions of law from the various sections under which the Petitioner has been charged with. Section 419 of the IPC is punishment for cheating by personation. It is an offence for which there is no minimum sentence but the person may suffer an imprisonment which may extend up to 3 years or with fine or with both. There is no mandatory term of imprisonment. It is classified as cognizable and bailable. However, for an offence under section 419 to be committed it must satisfy the definition of cheating which is given in the substantive provision section 415 IPC. The same reads thus: "Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to cheat". "Explanation.- A dishonest concealment of facts is a deception within the meaning of this section;" 15. "Explanation.- A dishonest concealment of facts is a deception within the meaning of this section;" 15. From a conjoint reading of section 415 IPC, which is the substantive section, and section 419 which is the punitive section, the inference that can be drawn is that a mere impersonation will not be an offence under section 419 IPC. The impersonation must be for the purpose of cheating. Cheating is defined in the substantive section 415 IPC. For that to take place, there must be deception of the victim by fraudulent or dishonest inducement resulting in the delivery of any property to any person, or a consent by. the victim that any person may retain any property or induces the victim to do or omit to do an act, which that victim would not omit or do if the victim were not so deceived. However, it is important to mention here that mere act or omission on the part of the victim by itself is inadequate. The said act or omission must result or should be likely to result in damage or harm to the victim in body, mind, reputation, or property. 16. The next section is section 467 IPC, which is a punitive section providing for punishment for forgery of valuable security and reads thus: "Whoever forges a document which purports to be a valuable security or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or deliver any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with [imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." 17. The substantive section defining forgery is S. 463. The substantive section defining forgery is S. 463. It reads thus: "Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury, to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery." 18. Section 463, which defines forgery does not make the mere creation of a false document or a false electronic record or a part of a document or electronic record by itself an offence. The creation of a false document must be with an intent to cause damage or injury to the public or to any person for supporting any claim or title or to cause the victim to part with property or to enter into any express or implied contract or with intent to commit fraud on the victim. 19. Section 468 makes forgery for the purpose of cheating punishable for the term of imprisonment which may extend to 7 years and with fine. Section 471 makes the fraudulent or dishonest use as genuine, a document which the accused knows or has reasons to believe to be forged and the same is made punishable with a term of imprisonment, which is the same as the punishment for forgery. 20. Section 66D of the Information Technology Act, provides for punishment for cheating by personation by using computer resource. It provides thus: "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." 21. Section 66D of the Information Technology Act in effect is the same as s. 419 of the IPC, when done through the medium of computer, computer resource or other computing devices. 22. Though the Petitioner is alleged to have impersonated various institutions/persons, which he was not, by sending fake emails to the complainant, it is to be seen whether the action on the part of the Petitioner would constitute an offence either under section 419 IPC or section 66D of the Information Technology Act. 22. Though the Petitioner is alleged to have impersonated various institutions/persons, which he was not, by sending fake emails to the complainant, it is to be seen whether the action on the part of the Petitioner would constitute an offence either under section 419 IPC or section 66D of the Information Technology Act. The actus reus that is common to both these offences is cheating by impersonation. Under section 419 IPC, the offence is committed by direct impersonation and under section 66D of the Information Technology Act, it is done through the digital media. The common factor required for both these sections, before an act could be termed as an offence, is the mens rea to cheat. Cheating is only defined in section 415 of the IPC and is not separately or differently defined under the Information Technology Act. As stated earlier, the mere deception of the victim by fraudulent inducement, is inadequate for an offence of cheating. It is essential that the fraudulent act must result in a loss to the victim who may have parted with some property or would have let the person so deceiving the victim retain any property or make the victim so deceived to do or omit from doing any act which would result or likely to result in damage or harm to the victim in body, mind, reputation, or property. 23. The facts of the case reveal that prima facie impersonation seems to have taken place as investigation discloses that the Petitioner had created several email IDs of fictitious persons and communicated with the complainant through those email IDs. However, the same has not resulted in any kind of loss, financial or otherwise to the Respondent No. 2. On the contrary, it is admitted that using these fictitious accounts the Petitioner is stated to have given work to the Respondent No. 2 and for the work done by her, the Petitioner has overall paid the Respondent No. 2 Rs. 19,56,000/- over a period of three years which is undisputed. Therefore, though the Petitioner may have impersonated, his action prima facie does not constitute an offence either under section 419 of the IPC or section 66D of the Information Technology Act as by such impersonation, the Petitioner has not caused any loss to the Respondent No. 2 and as stated earlier hereinabove, has only benefited her by paying her Rs. Therefore, though the Petitioner may have impersonated, his action prima facie does not constitute an offence either under section 419 of the IPC or section 66D of the Information Technology Act as by such impersonation, the Petitioner has not caused any loss to the Respondent No. 2 and as stated earlier hereinabove, has only benefited her by paying her Rs. 19,56,000/- over a period of three years. The allegation of the Respondent No. 2 that had it not been for the Petitioner giving her work through fake email accounts of fake clients and institutions, she would have made more money in three years had she been left on her own, is a speculative statement and the amount of money that she would have earned being close to Rs. 90,00,000/- is a notional amount rather than a specific amount that can be worked out. Even otherwise, the law as it stands today is that if cheating did not exist from the very inception of an association which otherwise has a civil colour, then the offence of cheating is not made out and the same would merely be a civil transaction. 24. Sections 467, 468 and 471 IPC relate to forgery which before being committed must necessarily satisfy the ingredients of forgery given in section 463 IPC. Section 463 IPC very clearly defines forgery not merely as an act of creating a false document or a false electronic record or a false part of a document or electronic record, unless the same is done with an intent to cause damage or injury to the public or to any person or to support any claim or title or to cause the victim to part with property or to enter into any express or implied contract. Before sections 467, 468 and 471 IPC can be pinned on the Petitioner the evidence, first of all must reveal the damage or injury that has been caused by the act of forgery, alleged to be committed by the Petitioner on the victim, who is the complainant herein. As no actual quantifiable loss being suffered by the Respondent No. 2 has been disclosed in the entire case, the acts of the Petitioner would not come under the definition of I forgery and, therefore, the punitive sections, which section 467, 468 and 471 IPC are not attracted. 25. As no actual quantifiable loss being suffered by the Respondent No. 2 has been disclosed in the entire case, the acts of the Petitioner would not come under the definition of I forgery and, therefore, the punitive sections, which section 467, 468 and 471 IPC are not attracted. 25. In the final analysis, this Court finds that the allegations only reveal, at the most a civil dispute, as the Respondent No. 2 says that had it not been for the Petitioner's alleged misrepresentation, her earnings in three years would have been about Rs. 90,00,000/- instead of Rs. 20,00,000/-. She does not dispute that she has received nearly Rs. 20,00,000/- from the Petitioner. Under the circumstances, the dispute if any, between the two is more in the nature of civil dispute. 26. The transcripts of the conversations between the Petitioner and the Respondent No. 2, which has been annexed to the petition have not been disputed by the counsel for the Respondent No. 2 affirmatively but he has submitted that the said transcripts and the voice recordings are a matter for the trial court to determine in the course of the trial. Thus, the case against the Petitioner even if taken in its entirety and deemed to be true, does not disclose the commission of any offence. 27. Under the circumstances, in view of what has been discussed and observed hereinabove, the petition is allowed. The FIR bearing No. 136/2016 along with the charge sheet and all proceedings in ST No. 184/2018 pending on the Board of the learned 3rd Additional District and Sessions Judge, Bhopal is hereby quashed.