Final Order 1

Order Details: Copy of Judgment
Pdf Text: Judgment 1 C.C.No.945/PW/2022
MHMM180039952022
Received on : 13/05/2022
Registered on : 13/05/2022
Decided on : 21/11/2022
Duration : 00 Y. 06 M. 08 D.
Exh.No.- 09
IN THE COURT OF ADDL. CHIEF METROPOLITAN MAGISTRATE,
09TH COURT, BANDRA, MUMBAI
(Presided over by K.H. Thombre)
JUDGMENT
(As per Section 355 of Code of Criminal Procedure)
a) The Serial number of the case : C.C. No.945/PW/2022
b) The date of commission of
offence
: In between the period from
08/10/2021 to 15/10/2021
c) The name of the complainant if
any
: The State through Mahim police
station. C.R.No.707/2021.
d) The name of the accused persons,
parentage and residence
: Wahidali Niyamatali Shaikh
Age-40 Yrs.
Occupation - Nil,
R/o. Room No.104, Galli No.02,
S.V.Road, Daulatnagar, Borivali
e) The offence complained of or
proved
: Under Section 420 of Indian Penal
Code r.w. Section 66(c), 66(d) of
Information Technology Act.
f) The plea of the accused and his
examination, if any
: Accused pleaded not guilty and
claimed to be tried.
g) The Final Order : The accused is acquitted.
h) The date of such order : 21/11/2022
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Judgment 2 C.C.No.945/PW/2022
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Learned counsel for Prosecution: APP Smt.MF Pakajade for State
Ld. Counsel for Accused : Adv. Mr. M.H.Nizam
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JUDGMENT
(Delivered on 21/11/2022)
1) The accused is charged for the offence punishable under section
420 of The Indian Penal Code r.w. Section 66(c), 66(d) of The Information
Technology Act.
2) The case of prosecution in brief is as under----
Informant, Smt. Sandra Savalo Siquera is working as anAdmin
Executive in Campbel Shooting Pvt. Ltd., Linking Road, Khar. On 07/10/2021 a
a trip for Goa was planned for the employees of the Company. The informant
searched online booking agencies from Just Dial Application to book 14 tickets
from Mumbai to Goa. The informant got details of eight travel companies. By
selecting one, the informant made phone call on mobile No.9892152014 at 10.30
p.m.. A person by name Yatish had spoken from other side and he said that he
will call tomorrow and disconnected phone call.. On 08/10/2021 at about 8.45
a.m. the informant got phone call from mobile No.9594236938 informing her
that one Wahid Ali Shaikh is speaking from Sky Tours and Travels Company. He
asked informant whether she had made inquiry for booking of railway tickets.
Instead of giving clear reply, that person started speaking to the informant about
booking of the tickets. That person sent visiting card of Sky Tours and Travels
Company on whatsapp. The address was mentioned as Sky Tours and Travels,
Shop No.04, Gitanjali Apartment, Road No.07, Malvani, Malad(W), Mumbai-
400 095. The name of Wahid Ali Shaikh alongwith mobile No.987006121 was
mentioned on the visiting card. That person forwarded his email ID on whatsapp
of the informant. The informant believed on that person and decided to book
railway tickets. The informant sent details from the email ID of her office to the
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Judgment 3 C.C.No.945/PW/2022
email ID of Sky Tours and Travels for booking of railway tickets of Goa. That
person sent mail about booking of 14 railway tickets for Rs.21,280/-. That
Wahid Ali asked the informant how they will pay. Informant replied that they
will pay either by cheque or NEFT. That person said that the amount is required
immediately to book tickets. Considering urgency, the informant forwarded
Rs.6,500/- from Google Pay of one of the employees namely Mr. Shashank
Pathak to the Google Pay Account No.7208148462 of Sajid Pathan. Then again
on the say of Sajid Pathan an amount of Rs.4,780/- was transferred to the the
account of Sajid Pathan from Google Pay account of Shashank Pathak. The
informant asked that remaining amount of Rs.10,000/- will be paid in cash
which will have to be collected from her residence.
3) On 09/10/2021 Wahid Ali Shaikh made phone call to the informant
from Mobile No.9594236938 and said that he is standing under her building and
he has come. The informant asked that person to come and collect the amount.
The informant paid Rs.10,000/- cash. That person handed over documents of
railway booking details and bill receipt.
4) The informant claimed the amount from Account Manager of the
company Deepali Shah. The Account Manager informed the informant that the
amount will not be paid in cash, it will be paid through NEFT and she can claim
that amount already paid from that person. The informant asked Wahid Ali
Shaikh to provide details of his account number. The amount of Rs.21,280/- was
transferred from the account of Dipali Shah on the Airtel Payment Company
Account No.7208148462. The informant asked to send this amount of
Rs.21,280/- on the account of Shashank Pathak. Thereafter, the amount was not
returned to the informant and her phone calls were not picked up. The informant
went on the address given on the visiting card to take search of the office of Sky
Tours and Travels. It was found that there was no such office of the travel
company. The informant made oral complaint to Police Station, Khar on
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Judgment 4 C.C.No.945/PW/2022
15/10/2020 but was not certain about being cheated and therefore report was
not lodged. The informant tried to contact Wahid Ali Shaikh however, he was
not traceable. The informant was certain at that time that she has been cheated.
The informant booked the railway tickets from A-1 Tours and Travels Company
and went for picnic. On 24/10/2021 they returned from picnic and thereafter,
lodged report at Police Station, Mahim. The accused was arrested in Crime
No.43/2022 by Kashimira Police Station. The custody of the accused was taken
in this crime as he has disclosed about commission of this offence. After
completion of investigation, charge-sheet is filed.
5) The charge is framed against the accused at Exh.02. The Contents
of the charge were read over and explained to the accused to which the accused
pleaded not guilty and claimed to be tried. Plea of the accused was recorded at
Exh.03.
6) The prosecution has examined in all three witnesses, P.W.No.1
Sandra Siquera, informant ( Exh.04), P.W.No.2 Dattatreya Mahadev Khade,
who registered FIR at Exh.06 and P.W.No.3 Sandeep Padmakarrao
Patil,Investigation Officer at (Exh.08). Statement of accused under Section
313(1)(b) of Code of Criminal Procedure is recorded at (Exh.09 ). Defence of
the accused is of false implication in this case.
7) The accused refused to lead defence evidence. Heard Learned
A.P.P. Smt. MF Pakajade and Ld. Advocate Mr. M.H.Nizam for the acused.
8) Considering the material available on record of the parties,
following points arose for determination. Findings are recorded against each of
them for reasons to follow.
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Judgment 5 C.C.No.945/PW/2022
Sr.No POINTS FINDINGS
1] Whether the prosecution proved that during
the period from 08/10/2021 to 15/10/2021 at
Campbel Shooting Pvt. Ltd., 444, The
Corporate Launch, Linking Road, Khar(W),
Mumbai the accused cheated informant Smt.
Sandra Savalo Siquera by dishonestly
inducing her to deliver amount of
Rs.42,560/- for booking railway tickets
through Sky Tours and Travels Company
and thereby committed an offence punishable
under Section 420 of Indian Penal Code?
In the negative.
2] Whether the prosecution prove that the
accused on the aforesaid date and place
dishonestly used computer resources for
giving false instructions regarding railway
ticket booking to the informant and thereby
committed an offence punishable under
Section 66(C) of the Information Technology
Act?
In the negative.
3] Whether the prosecution prove that the
accused on the aforesaid date and place
cheated the informant by using computer
resources and providing false instructions
regarding railway ticket booking and thereby
committed an offence punishable under
Section 66(D) of the Information Technology
Act?
In the negative.
4] What order? Accused is acquitted.
R E A S O N S
AS TO POINT NO.1 to 3 :
9) Ingredients of the offence of cheating are required to be seen and
the evidence is to be appreciated whether these ingredients are proved or not.
The ingredients of the cheating are i) there should be fraudulent or dishonest
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Judgment 6 C.C.No.945/PW/2022
intention of the person to deceive) the person so deceived should be induced to
deliver any property to any person or to consent that any person shall retain any
property or the person deceived should be intentionally induced 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 likely to cause damage or harm to that person, body,
mind, reputation or property.
10) According to (P.W.1) Sandra Siquere, she want to book tickets for
the employees of the trip from Mumbai to Goa and Goa to Mumbai. She dialed
number of A-1 Travels to book the tickets. One Atish replied her phone by saying
that he is out of station will call later on. On the next day she got phone call
from Sky Tours and Travels Company and after speaking on phone quotation of
Rs.21,000/- was given by that person on her whatsapp for one way booking of
railway tickets.. As per instructions of the informant she received quotation and
email ID on the email provided by the informant. This evidence of informant
clearly established that it was the informant who made a phone call by searching
on Internet to the travel agency for booking tickets.
11) It is deposed by (P.W.1) Sandra Siquera that amount was sent
through Google Pay at the request of the person speaking on the other side from
the phone. The said amount was forwarded from the account of colleague of
informant by name Shashank Pathak. The amount was transferred by Dipali
Shah, Account Officer of the informant's Company as per the instructions of the
person who is speaking on phone from the other side. Informant demanded the
amount on several occasions but the person speaking on other side refused to pay
the amount to the informant. On the day of going for Goa, on the railway tickets
booked by that person, informant got phone call that the tickets are fake and
not to travel. Informant have to cancel those tickets and have to go for a trip of
company by booking another railway tickets through a different agency. All this
oral evidence given by (P.W.1) Sandra Siquera can be proved or established by
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Judgment 7 C.C.No.945/PW/2022
way of leading evidence in the form of email, call details, bank details and other
electronic mode. The numbers from where informant received phone
calls,amount transferred, email received are not proved , no evidence is collected
to prove the allegations. Further (P.W.1) Sandra admitted that the tickets
received to her were found confirmed when checked by her.
12) The evidence of (P.W.2) Dattatreya Khade is relevant only to prove
the contents of the FIR that he lodged FIR (Exh.07) by writing the complaint of
informant as per her say. The Investigation Officer (P.W.3) Sandeep Patil
deposed that he verified from the email and he found Account No.720148462 of
Airtel Payment Bank, he received email from the bank that account number is in
the name of Wahid Ali Shaikh. As the accused was arrested by Kashimira
Police Station, he had taken custody of the accused. No evidence is placed on
record to prove that the account numbers, phone numbers used to communicate
and transfer the amount are operated by the accused.
13) As far as the evidence of (P.W.1) Sandra Siquera is concerned, her
evidence can be supported by production of details of the account in which the
amount was transferred. Though, (P.W.3) Sandeep Patil deposed that he found
one account number of Wahid Ali Shaikh, no details are given that what amount
was transferred in the account of Wahid Ali Shaikh. The bank officer is also not
examined by the prosecution to establish that the account was in the name of
Wahid Ali Shaikh and certain amount is transferred in his account. In absence of
proof of details of bank, examination of the bank officers, how the amount was
electronically transferred, no conclusion can be drawn that it is the accused who
asked the informant to transfer the amount in his account and thereby induced the
informant with the intention of cheating. The details of account, from which
account transaction has taken place, is not produced and proved by the
prosecution.
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Judgment 8 C.C.No.945/PW/2022
14) Only incriminating evidence which prosecution relied on against
the accused is that informant has identified the accused on video linkage, that
the accused is the person who has taken Rs.10,000/- cash from her residence. As
per case of prosecution the amount of Rs.10,000/- paid by the informant in cash
to one Wahid Ali. The bill of receipt and the details were handed over to the
informant. The offence as allegedly is committed by using different phone
numbers and email ID's. The prosecution has to establish on record that all these
numbers and email ID's are used by the accused for the purpose of the said
transaction. In absence of any corroborative and substantive evidence, mere
identification of the accused who received cash of Rs.10,000/- is not sufficient to
establish that the accused is the person, who induced the informant to part with
money with the intention to cheat.
15) The informant admitted in her cross-examination that on checking
the tickets online she found booking is done as per tickets issued to her. The
amount from the account of the company were transferred on the instructions of
the informant. The amount received in person for which bill and receipts were
issued to the informant. The effect of this evidence is that, it rules out the
possibility of issuing fake tickets, intention to cheat and absence of inducement.
The ingredients of the offence punishable under Section 420 of The Indian Penal
Code are missing from the evidence of prosecution. Absence of proof of use of
electronic transfer and communication does not prove the ingredients of offence
punishable under Section 66(c)(d) of the Information Technology Act. For these
reasons it is held that the prosecution failed to establish the guilt of the accused
beyond reasonable doubt. Findings to Point No.1 to 3 is recorded in the negative
with the following order.
O R D E R
1) Accused Wahidali Niyamatali Shaikh is acquitted of the offence
punishable under Section 420 of The Indian Penal Code r.w. Section 66(c), 66(d)
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Judgment 9 C.C.No.945/PW/2022
of Information Technology Act vide Section 248(1) of the Code of Criminal
Procedure.
2) The accused is in jail. He be released forthwith, if not required in
any other offence. Inform the Jail Authority accordingly.
3) The accused to furnish bail bonds in compliance of Section 437(A)
of The Code of Criminal Procedure. Jail Authority is directed to release the
accused on executing P.R.Bond of Rs.10,000/-(Rupees Ten Thousand only) and
to submit the report accordingly to this Court.
4) The copy of the Judgment be forwarded to District Magistrate vide
Sec.365 of The Code of Criminal Procedure for further compliance.
( Dictated and pronounced in open Court.)
Date:-21/11/2022. (K.H.Thombre)
Addl. Chief Metropolitan Magistrate,
09th Court, Bandra, Mumbai
Delivered on: 21/11/2022
Dictated on : 21/11/2022
Typed on : 21/11/2022
Signed on : 21/11/2022
vnh
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