Final Order 3

Order Details: Order Below EX 1
Pdf Text: C. C. No. 78 PW 2023 State Vs Chidubem and ors.
CNR-MHMM18-000257-2023
ORDER BELOW EXH.11
1. Perused record. Heard Ld. Advocate Shri Ashish Baraskar, for the
applicant/accused. Heard Ld. A.P.P. Perused say filed by Ld. A.P.P.
2. This is an application filed under Section 239 of Code of Criminal
Procedure, by Accused No.1, Mr. Chidubem Christian Augustin,
hereinafter referred as applicant, for discharge from the matter.
3. The allegations in brief, are as under -
The informant Mr. Sonraj Nagvendra Gaonkar, on 23.04.2022,
uploaded his profile on Dating Application Truly Madly. Later on a
woman named as Anita Kira Carlton, who claimed to be fashion designer
and Belgian citizen contacted him and offered to marry him. On
22.05.2022, she obtained his address under the pretext of sending gift.
Then on 25.05.2022, informant received a call from Custom office Delhi,
and asked him to deposit Rs.28,500/- in an account provided by a caller, a
woman. Later on she again called and asked him to deposit an amount of
Rs.1,47,435/- claiming that the parcel contains Euro currency and for
transferring it into Indian currency said amount is required.
Then repeatedly under the one pretext or another, from time to time
various amount were obtained from informant. The total amount reached
upto Rs.33,52,169/-. Then informant realized that he has been cheated
and lodged report with Cyber Police Station, West Division, Mumbai,
against unknown persons.
4. Then investigation commenced. During investigation it is
transpired that the same nature of offence registered with Gautam Budha
Nagar Cyber Police Station, Uttar Pradesh, bearing C. R. No.31 of 2022
and two accused persons i.e. present applicant Mr. Chidubem Christian
S/o Augustime Ogilo and another accused Mrs. Fatovma Sall D/o Sall
Fatvoma, were arrested by the said police station.
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C. C. No. 78 PW 2023 State Vs Chidubem and ors.
CNR-MHMM18-000257-2023
5. The Investigating Officer, therefore, sought transfer of these
accused persons in the present crime as he found their connection with
the present matter. Both of them were then transferred in the present
crime and produced before this court on 13.10.2022. After police custody
they were remanded to Magisterial custody on 15.10.2022.
6. Then investigation was completed and charge sheet has been filed
before this court on 10.01.2023. The bail applications were filed by both
the accused persons, but they were rejected. Since then both the accused
are in custody.
7. Now the applicant approached this court by way of this application
and contended that there is no iota of evidence against accused, therefore,
he shall be discharged. The Ld. Advocate for the accused, in this brief
application specifically contended that the applicant is falsely implicated.
He is arrested only because he is Nigerian National. There is no
admissible evidence against the applicant to frame the charges against
him. In the charge sheet there is no iota of evidence to connect the
applicant with the said crime. That the passport of the applicant is already
deposited in Gautam Budha Nagar Cyber Police Station, U.P.
8. Against it Ld. A.P.P., vide his say, Exh.12, contended that the
domain name and the gift receipt found in phone of accused is same.
There found reasonable connection of the applicant with the alleged act.
Therefore, application shall be rejected.
9. After perusal of record it is noticed that the First Information
Report is registered against unknown persons. After registration of the
First Information Report the data is collected from the phone/hardware of
the informant and from his banker and in the charge sheet hard copies of
the said data, which includes certain chats on Social Media and bank
accounts, etc. were produced with the charge sheet.
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CNR-MHMM18-000257-2023
10. Though these hard copies made the charge sheet bulky, in this
material there found no evidence to connect both the accused including
present applicant, with the alleged acts of fraud and cheating.
11. About the objections raised by the Ld. A.P.P. specific query was
made and it is requested him to show the evidence produced with the
charge sheet to connect the accused persons, including applicant with the
charge sheet. The Ld. A.P.P. drawn attention towards the photocopy of
the receipt filed with charge sheet at Page No.133 and hard copies of the
e-mails received by the informant, filed with the charge sheet at Page
Nos.260 and 261. Except this there found no material shown to connect
the accused persons with the alleged act.
12. So far as photocopy of the receipt filed with charge sheet at Page
No.133, is concerned it is seized from the evidence collected by Guatam
Buddha Nagar Cyber Police Station, U.P., allegedly from the cellular
phone of the applicant. This document even if presumed to be seized from
the cellular phone of the applicant, there is no evidence to draw the
inference that it is about the parcel relating to present matter. Further, this
is inadmissible in evidence. Thus, it can not be said any evidence relating
to present matter and that too connecting the accused persons with the
present matter.
13. Regarding other evidence on which Ld. A.P.P. relied i.e. hard
copies of the e-mails received by the informant, filed with the charge
sheet at Page Nos.260 and 261, those are obtained from the informant, as
stated above. Those documents suffers from the same deficiency i.e. there
found no admissible material about these documents also which will
connect the accused persons with the present offence.
14. It is the case of pure cyber fraud. The record reflects that in such
matters the major evidence required and expected is evidence of technical
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or electronic evidence. The Investigating Officer except transferring the
accused from another police station to the present crime seems did
nothing. He had not taken any pain to collect any additional evidence
except collecting data from informant so that accused persons can be
reasonably connected with the present offence.
15. Thus, from the material produced with the charge sheet it is clear
that material to connect applicant as well as another accused is totally
missing. The law pertaining to discharge of accused, is now settled and
all the principles of law pertaining to discharge of accused are recently
summarized by Supreme Court, in the judgment passed in Vikarmjit Kakati
Vs State of Asam (2022 SCC OnLine 967), as follows -
10. Before we proceed to examine the matter on merits any further, it
will be apposite to take note of the legal principles applicable seeking
discharge, for which we may refer to a judgment of this Court in P.
Vijayan v. State of Kerala & Another, which has been further reiterated
by this Court in the recent judgment in M.E. Shivalingamurthy v.
Central Bureau of Investigation, Bengaluru and discerned the following
principles:
“17.1. If two views are possible and one of them gives rise to suspicion
only as distinguished from grave suspicion, the trial Judge would be
empowered to discharge the accused.
17.2. The trial Judge is not a mere post office to frame the charge at the
instance of the prosecution.
17.3. The Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding. Evidence
would consist of the statements recorded by the police or the documents
produced before the Court.
17.4. If the evidence, which the Prosecutor proposes to adduce to prove
the guilt of the accused, even if fully accepted before it is challenged in
cross-examination or rebutted by the defence evidence, if any, “cannot
show that the accused committed offence, then, there will be no
sufficient ground for proceeding with the trial”.
17.5. It is open to the accused to explain away the materials giving rise
to the grave suspicion.
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17.6. The court has to consider the broad probabilities, the total effect of
the evidence and the documents produced before the court, any basic
infirmities appearing in the case and so on. This, however, would not
entitle the court to make a roving inquiry into the pros and cons.
17.7. At the time of framing of the charges, the probative value of the
material on record cannot be gone into, and the material brought on
record by the prosecution, has to be accepted as true.
17.8. There must exist some materials for entertaining the strong
suspicion which can form the basis for drawing up a charge and
refusing to discharge the accused.”
16. If we collectively considered these principles and the material
produced against the applicant and another accused it can be easily
inferred that there is no material to connect both the accused persons
including present applicant, with the alleged act.
17. Recently in case of State of Tamil Nadu Vs S. Saundirarasu and ors.
((2023) 6 SCC 768), Supreme Court made observations about the
importance of the framing of charge. It is observed that there must exists
ground for presuming that offence has been committed by accused
persons, as follows -
Para.61. Section 239 envisages a careful and objective consideration of the
question whether the charge against the accused is groundless or whether there
is ground for presume that he has committed an offence. What Section 239
prescribed is not, therefore, an empty or routine formality. It is a valuable
provision to the advantage of the accused, and its breach is not permissible
under law. But if the Judge, upon considering the record, including the
examination, if any, and the hearing, is of the opinion that there is “ground for
presuming” that accused has committed the offence triable under the Chapter,
he is required by Section 240 to frame in writing a charge against the accused.
The order for the framing of charge is also not an empty or routine formality.
It is of a far-reaching nature, and it amounts to a decision that the accused is
not entitled to discharge under Section 239, that there is, on the other hand,
ground for presuming that he has committed an offence triable under Chapter
XIX and that he should be called upon to plead guilty to it and be convicted
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and sentenced on that plea, or face the trial. (See : V. C. Shukla Vs State, 1980
Supp SCC 92).
Para.62. Section 239 of Cr.P.C. lays down that if the Magistrate considers the
charge against the accused to be groundless, he shall discharge the accused.
The word “groundless”, in our opinion, means that there must be no ground
for presuming that the accused has committed the offence. The word
“groundless” used in Section 239 of Cr.P.C. means that the material placed
before the court do not make out or are not sufficient to make out a prima facie
case against the accused.
18. If we applied both the above tests laid down in both the above
matters to present case it is clear that the accused persons arrested and
charge sheeted without any cogent material, which can be said to be
enough to frame charge. Both the accused persons are entitled to be
discharged.
19. The application is filed by only one accused i.e. present applicant.
The stage is fixed for framing of charge. Therefore, this court has
jurisdiction to decide the admissibility of the evidence for the other
accused as well. As such the other accused also needs to be discharged
from the matter. Accordingly, following order in view of these
observations -
ORDER
Application, Exh.11, is allowed. Further order passed below Exh.1.
Sd/-
MUMBAI (KOMALSING RAJPUT)
DATE – 23.11.2023 M.M., 12TH COURT, BANDRA, MUMBAI
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