1 RESERVED IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL Criminal Appeal No. 202 of 2010 1. Simon Dunolz 2. Belive S/o Etadapherua 3. Ms. Christina Chakchuvak .....................................…..Appellants (in jail) Versus State of Uttarakhand .........................................Respondent Ms. Sushma Sharma, Advocate with Shri Sandeep Kothari, Advocate, present for the appellants. Shri M.A. Khan, Brief Holder, present for the State. Hon’ble Prafulla C. Pant, J. This appeal, preferred under section 374 of Code of Criminal Procedure, 1973 (for short Cr.P.C.) is directed against judgment and order dated 18.05.2010 passed by Sessions Judge, Tehri Garhwal in sessions trial No. 18 of 2008, whereby said Court has convicted appellants namely Simon Dunolz, Belive and Ms. Christina Chakchuvak under section 420 read with section 120B Indian Panel Code, 1860 (for short I.P.C.) and each one of them has been sentenced to rigorous imprisonment for a period of six years and directed to pay fine of ` 25,000/- (rupees twenty five thousands only). Accused appellant Simon Dunolz has been further convicted under section 14 of Foreigner Act, 1946 and sentenced to rigorous imprisonment for a period of four years and directed to pay fine of ` 25,000/- (rupees twenty five thousand only). 2 2. Heard learned counsel for the parties perused the lower Court’s record. 3. Prosecution story in brief is that Ms. Swati Maindola (PW1) is resident of Rishikesh, who used to work as Finance Assistant in Hotel Ananda, Narendra Nagar. On 04.10.2007, she received a electronic mail (for short e-mail) in her mail I.D. – swati-forever02@yahoo.com from mail I.D. holder nationaldesk@earthlink.net. In said mail complainant Swati Maindola was informed that she has won a lottery of £2,50,000/- (pound two lakh fifty thousand only), and she was advised to get in touch with Mark White on his e-mail address verification-claimagent71@yahoo.co.uk to claim her money. In response to said mail, complainant (Swati Maindola) sent her complete address where after, she was advised to get in touch with one Mr. John Finch, a Dispatch Officer, on his e-mail I.D. worldcourier-express deliveryIII@yahoo.co.uk with phone number +44-701-11130078 or +40-702-408-2934, fax number +44-8704788143. On getting in touch with Mr. John Finch, complainant was informed that she is allotted order number D28928806, and she was asked to accept one of the four options, in reply to which she opted for ‘wire transfer service’ for which she was asked to deposit ` 1,75,500/- (rupees one lakh seventy five thousand five hundred only) to the Payment Officer one Mr. Vincent Clarke having mobile number 9987388366. When PW1 Swati Maindola (complainant) contacted Mr. Clarke, he advised her to deposit money on a particular account number of ICICI Bank. The complainant went on depositing the amount time to time asked by the persons mentioned above, but she did not get any prize money. On 21.11.2007, a call was received from one David William 3 through mobile number 9920650094 who told her that he is coming to India and the lottery prize money will have to be cleared at the air port for which the complainant was asked to deposit further ` 1,20,000/- (rupees one lakh twenty thousand only). This was also done by her. On 22.11.2007, David William reached Rishikesh and stayed in Hotel ‘Gangakinare’ where he showed to the complainant a parcel containing three bundles of green notes. David William made the complainant believe that the bundles contained genuine currency in dollars. On 23.11.2007, he told that since Mr. Clarke has been arrested in Delhi as such he needed further ` 33,000/- (rupees thirty three thousand only) for bringing some solution required to be used to clean the currency notes. However, on 14.12.2007, though Dr. George came to Rishikesh but returned on the same day. On smelling rat complainant enquired from her officer of Ananda Hotel where she works as Finance Assistant, about the incident who told her that she has been cheated. On this the complainant Swati Maindola lodged First Information Report on 19.12.2007 at Police Station Narendra Nagar, District Tehri Garhwal against the three accused namely David William, Vincent Clarke and Dr. George. 1. On the basis of first information report (Ex.A2) lodged by PW1 Swati Maindola Crime No. 2082 of 2007 was registered against above three accused relating to offences punishable under section 406, 420, 235, 120B I.P.C. and one punishable under section 43/45/66/74 of Information Technology Act, 2007. The crime was investigated by the Circle Officer Shri Surjeet Singh Panwar, and a team for investigation was constituted. PW4 Station House Officer Rameshwar Prasad Sati was also one of the members of said 4 team. The investigating agency put the mobile numbers disclosed by the complainant, belonging to the accused, on surveillance in Delhi, Mumbai and Bangalore. The team (of investigating agency) proceeded for Delhi to locate Dr. George. However, Dr. George failed to turn up at the places where he was asked to collect the money further demanded by him. On 22.12.2007, Dr. George sent three persons (two men and one woman) to Rishikesh for collecting money regarding which complainant gave necessary information to the investigating team. The said three persons are the present appellants namely Simon Dunolz, Belive and Christina who were arrested by the police near Tapowan crossing within the limit of Police Station Munikireti, District Tehri Garhwal. On arrest of the three accused (present appellants) they disclosed their identity. The two men are the Nigerian nationals and the third woman accused is Indian national from Assam. The investigating agency recovered mobile phones and some Indian and U.S. currency from the appellants regarding which Memorandum of Recoveries Ex. A5, A6 and A7 were made. The investigating agency also recovered the solution and other materials used by accused for making fake foreign currency notes and prepared necessary Recovery Memos. After collecting the evidence and on completion of investigation, Investing Officer submitted charge–sheet against the accused/appellants, for their trial in respect of offences punishable under sections 406, 220, 235, 120B, 489, 489A, 489B, I.P.C., under section 43J, 45, 66, 74 Information Technology Act and under Section 14 of Foreigner Act (other three accused namely Dr. George, Vincent Clarke and David William were shown as absconding suspected and wanted accused). 5 2. On receipt of charge-sheet by the Chief Judicial Magistrate, Tehri Garhwal the case was committed to the Court of Sessions for trial, after giving necessary copies as required under section 207 Cr.P.C. After hearing the parties on 24.10.2008, the Sessions Judge framed charge of offences punishable under section 120B, 420, 231, 235, 489A, I.P.C. and one punishable under section 43 and section 45 of Information Technology Act, 2000 read with section 120B, I.P.C. on 3rd of November 2008 against the three accused Simon Dunolz, Belive and Christina Chakchuvak, to which all the three accused pleaded not guilty and claimed to be tried. An additional charge was framed on the same day (03.11.2008) by the Sessions Judge in respect of offence punishable under section 14 Foreigner Act against the accused Dunolz to which also he pleaded not guilty and claimed to be tried. On this prosecution got examined PW1 Ms. Swati Maindola, informant, PW2 Sub-inspector Rishiballabh Chamola of Special Task Force, PW3 Bhagwant Singh Bist of Special Task Force, PW4 Rameshwar Prasad Sati, Station House Officer, PW5 Sub-inspector Chandan Singh Chauhan, PW6 Constable Gabar Singh and PW7 Circle Officer Surjeet Singh Panwar who investigated the crime. 3. The oral and documentary evidence was put to the accused under section 313 of Cr.P.C. in reply to which they pleaded ignorance and alleged that evidence adduced against them is false. Accused Simon Dunolz alleged that he was arrested actually on 21.12.2007 at Delhi. Similar statements were made by accused Belive. Accused Christina also made similar statement under section 313 Cr.P.C., in reply to evidence adduced against her. However, no evidence in 6 defence was adduced. After hearing the parties, the trial court found that charge of offences punishable under section 420, I.P.C. read with section 120B, I.P.C. and that of offence punishable under section 14 of Foreigner Act stood proved against accused Simon Dunolz. As against accused Belive and Christina charge under section 420, I.P.C. read with section 120B, I.P.C. was found proved. However, the trial court found that the offences punishable under section 420/120B, 231/120B, 235/120B, 489A/120B, 489B/120B I.P.C. and one punishable under sections 43/120B and section 45/120B of Information Technology Act, 2000 were not proved on the record against any of the three accused/appellants. After hearing the convicts on sentence accused Simon Dunolz was sentenced to rigorous imprisonment for a period of six years and directed to pay fine of ` 25,000/- (rupees twenty five thousand only) under section 420/120B, I.P.C., and rigorous imprisonment for a period of four years and directed to pay fine of ` 20,000/- (rupees twenty thousand only) under section 14 Foreigner Act, in default of payment of fine convict Simon Dunolz was directed to undergo rigorous imprisonment for a further period of one year. Each one of other two accused convicts Belive and Ms. Christina was sentenced to rigorous imprisonment for a period of six years and directed to pay a fine of ` 25,000/- (rupees twenty five thousand only). In default of payment of fine the defaulter convict was directed to undergo further seven months rigorous imprisonment. Aggrieved by said judgment and order dated 18.05.2010 passed by Sessions Judge, Tehri Garhwal in Sessions Trial No. 18 of 2008, this appeal is filed before this court on 7 31.08.2010, which was admitted after condoning delay in filing the appeal and Lower Court record was summoned. 4. Before further discussion, I think it just proper to mention the documentary evidence proved on the record before the trial court. Apart from first information report (Ex.A2) lodged by PW1 Swati Maindola, her certificate (Ex.A1) as to her e-mail I.D. ‘swati-forever02@yahoo.com’, arrest memorandum dated 22.12.2007 (Ex. A4) relating to arrest of all the three accused, mentioning the recovery relating to one currency note of 100 dollars, three currency notes of 100 dollars soaked in a solution, two bottles of solution, one pair of rubber gloves, one mouth mask, etc, recovery memo (Ex.A5) relating to mobile from accused Christina, recovery memo (Ex. A6) relating to recovery made from accused Simon Dunolz which pertains to recovery of a laptop, a cell phone E90 (Sim No. 8991100611068327746) another cell phone 6233 (Sim No. 8991920607102314896), passport No. 35832024 (country Nigeria) another passport No. 442621218 (Johannesborg), four currency notes of 100 dollars, recovery memo (Ex. A7) relating to the recovery made from accused Belive which pertains to one mobile Motorola, one mobile N95 Nokia, one watch Pourto Armani, a purse containing Indian currency of ` 776 (rupees seven hundred seventy six only) and five currency notes of denomination of 100 dollars, a packet containing green notes (purported to have been received from Dr. George), site plan (Ex. A10), check report (Ex. A11), copy of general diary (Ex. A12) details of the account numbers in which the money was deposited with ICICI Bank (Ex. A13), and hard copies of e- mails were produced in the Court. 8 5. PW1 Swati Maindola informant has narrated the entire prosecution story regarding receiving mails on her e-mail address swati-forever02@yahoo.com relating to information that she has won lottery prize (which was later found false). She has further proved that how she responded to the mails received, and time to time made deposits. PW1 Swati Maindola further told that she got cheated by the present three accused/appellants and their associates Dr. George, Vincent Clarke and David William. She has narrated how she made the payment in the account of the ICICI Bank and also told relating to her meeting in Hotel Ganga Kinare with Dr. George and that how she was made to believe that the fake currency notes were the genuine notes of dollars. Her testimony is natural and trustworthy which is supported by the hard copies of e-mails and the recoveries made from the accused. She has also proved the payment made in response to the e-mail on various account numbers mentioned in Ex. A13. 6. PW2 Sub-inspector Rishiballabh Chamola of Special Task Force has stated that after registration of the crime on the report of Swati Maindola, how the special task force team reached to the accused by chasing them in various cities including Delhi. This witness has also proved the arrest of the accused and recoveries made from them as mentioned in recovery memorandum Ex. A5, Ex. A6 and Ex. A7. 7. PW3 Bhagwant Singh Bist is also a member of special task force, who has also worked to solve the crime reported by the complainant and corroborated the statement given by PW2, Rishiballabh Chamola. 9 8. PW4 Rameshwar Prasad Sati was the Station House Officer, Police Station Narendra Nagar. He has stated that the crime in question was probed as per the instructions of Circle Officer (who led investigation of the crime) and mobiles of the accused were kept under surveillance on their locations in Delhi, Mumbai and Bangalore. 9. On behalf of the appellants, it is argued that the investigating team has neither recorded the statements of the bank officials regarding the deposits made by the complainant nor the A.T.M. and cheque books used in the crime were recovered. It is contended that in such circumstance it cannot be said that the prosecution has proved the charge beyond reasonable doubt. This Court has gone through the entire evidence on record and re- appreciated the same, and it is of the view that even after abovementioned lapse on the part of the investigating agency, the charge against the accused/appellants stands proved on the record. 10. Next submission made on behalf of the accused/appellants by the counsel for the appellants is that the SIM Cards and mobiles were not sealed in the manner they were required to be sealed under the law. It is also argued that the tempering in the mobile phones cannot be ruled out. I have considered above submission of the learned counsel for the appellants and in my opinion, had it been a case of only circumstantial evidence, it could have been said that for the want of proper sealing of the SIM, charge stood not proved, but in the present case, apart from the recoveries made, there is ample direct evidence and documentary evidence of e-mails, which otherwise also proves the charge on record against the accused. 10 4. For the reasons as discussed above this Court does not find sufficient force in this appeal which is liable to be dismissed. Accordingly, the appeal is dismissed. Conviction and sentence recorded by the trial court against the accused appellants Simon Dunolz, Belive and Christina Chakchuvak is affirmed. They are in jail. Let a copy of this judgment be sent to the Superintendent of the jail concerned. Lower Court record be sent back. (Prafulla C. Pant, J.) Dated: 28.02.2011 S.K.