HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION No. 1919 OF 2010 DATED 19TH October, 2011 BETWEEN Shah Nawaz Nubair …….Petitioner and State of AP, Rep. by Public Prosecutor, High Court of AP, Hyderabad, and anr …… Respondents HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CRIMINAL PETITION No. 1919 of 2010. ORDER: This Criminal Petition under Section 482 Cr.P.C. is filed to quash crime No. 19 of 2009 on the file of the C.I.D.,Hyderabad in so far as the petitioner (A.2) is concerned. The second respondent lodged a complaint dated 18.12.2009 with the Additional Director General of Police, CID, AP, Hyderabad, which inter alia reads as under: “ I, Venkata Ramana Rao Rama, brother of Kalpana Rama, who is holding HDFC Saving Bank A/c.No. 06831610054859, Kazhakkota Branch,Trivendrum, Kerala. She is presently working in TCs, Chennai. Her address is mentioned below. The said account is a global account, thus my sister operates it from here Hyderabad as well as from Chennai. On 1st December 2009, an amount of Rs.30,600/- has been debited from her account. The account details i.e. Customer ID and Password are known only to her and her fiancé Mr.Santoosh. Both of them are unaware of this online (internet) transaction. Further we have raised a complaint in HDFC Bank. They reverted to contact Tech-process Solution. On contacting them, they have informed us that a N 97 mobile was purchased with the amount (on line) at Narayanaguda Universal shop, Hyderabad. We have contacted the shop, they have provided us the IMEI No.356064039077587. Thus I suspect that someone without the knowledge of my sister and Mr. Santoosh has made the said illegal transaction through internet and cheated us. Please investigate into this issue and help us in getting back our money”. The Crime Investigation Department (CID) registered the aforesaid complaint under FIR No. 19 of 2009 on its file and took up investigation. Heard. Perused the case file The learned Counsel for the petitioner submitted that the petitioner (A.2) has no knowledge about the hacking credit card of the sister of the second respondent. He submitted that the petitioner has purchased the mobile phone in question from A.1 as he (A.1) had a valid receipt. He asserted that A.1 confessed that he purchased the mobile phone from a well reputed mobile shop and obtained a valid receipt and as such it was proved that the mobile phone was purchased under a valid receipt and subsequently sold it to third person, and therefore the same cannot normally be doubted that it is a stolen property when the petitioner purchased the same. I see force in the contentions of the learned Counsel for the petitioner. In as much as the petitioner (A.2) has purchased the mobile phone from A.1, the police have implicated him in the said crime. The petitioner herein purchased the mobile phone in question from A.1 as he (A.1) had a valid receipt. As A.1 had valid receipt, the petitioner without verifying other details as to how he secured the mobile phone etc., simply purchased the same from him. A.1 confessed himself before the first respondent authorities as to how he purchased the mobile phone on-line. The Remand Dairy also revealed the same that he installed Elite Key Logger in the computer systems and grabbed confidential information relating to bank account of the sister of the second respondent-complainant and using the same he purchased the mobile in question through on-line for a sum of Rs.30,600/- and sold it to A.2 for Rs.20,000/- The petitioner perhaps did not verify other details as to his identity, name on the receipt etc., as he was receiving the new mobile phone at lower rate and at that time, he might not have entertained any doubt to verify the particulars of the person (A.1). As such, the petitioner neither purchased the mobile phone with dishonest intention nor is he having knowledge regarding the fact that the phone was purchased by A.1 through hacking in order to make out a case against the petitioner under the provisions of Section 66 of the IT Amendment Act, 2008. To hold a person guilty of the offence of cheating, it has to be shown that his intention was dishonest at the time of making the promise. Such a dishonest intention can be inferred from the facts and circumstances of each case. To establish the charge under section 420 I. P. C. , it must be proved not only that he has cheated someone, but also that by doing so, he has dishonestly induced the person who was cheated to deliver any property, etc. A person can be said to have done a thing dishonestly, if he does so with an intention of causing wrongful gain to one person and wrongful loss to another person. Wrongful loss means loss of property to which a person is entitled to, while wrongful gain to a person means, gain to him by unlawful means of property to which the said person gaining is not legally entitled to. To constitute the offence of cheating, it is not necessary to prove both wrongful gain and wrongful loss. It is enough to establish existence of either of them. Mens rea is an essential ingredient of the offence of cheating. Dishonest concealment of a fact is deception within the meaning of Section 415 I. P. C. Perusal of the material in the present case reveals that the petitioner has purchased the mobile phone from A.1 as he had a valid receipt. There is no wrongful loss or gain of property by unlawful means to the petitioner. The petitioner did not deceive any person, nor did he fraudulently or dishonestly induce the person so deceived to deliver any property to any person or he intentionally induced the person so deceived to do or omit anything which he would not do or omit if not deceived and which act etc. causes or is likely to cause damage or harm to A.1, to attract the offence under Section 420 IPC. For the foregoing discussion, the crime registered against the petitioner (A.2) in FIR.No. 19 of 2009 is liable to be quashed and the same is accordingly quashed in so far as the petitioner (A.2) is concerned. The Criminal Petition is accordingly allowed. --------------------------------------------- JUSTICE ASHUTOSH MOHUNTA Dated 19TH OCTOBER, 2011. Msnro