Single Judge quashed the final report in a criminal case alleging forgery and cyber crimes against a woman who created a Facebook profile using her husband's name. The court held the act lacked evidence of fraud, damage, or dob, and was an abuse of process.
Annexure-A2 final report and all further proceedings in C.C.No.989/2018 are quashed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE ZIYAD RAHMAN A.A.
WEDNESDAY, THE 14TH DAY OF DECEMBER 2022 / 23RD AGRAHAYANA, 1944
CRL.MC NO. 2981 OF 2019
[TO QUASH ANNEXURE-A2 FINAL REPORT IN C.C.NO.989/2018 PENDING BEFORE
THE JUDICIAL FIRST CLASS MAGISTRATE COURT, KODUNGALLOOR IN CRIME
NO.358/2018 DATED 16.05.2018 OF MATHILAKAM POLICE STATION]
PETITIONER/ACCUSED:
SWAPNA T.D.
AGED 35 YEARS
D/O. THUNDIYIL VIJAYAN, NO. 5/460, KRTVS SRIRAM NAGAR,
RAMASWAMY NAGAR EAST, UDUMALPET, THIRUPPUR, TAMIL NADU-
642 126
BY ADVS.
SHYAM PADMAN
C.M.ANDREWS
P.T.MOHANKUMAR
BOBY M.SEKHAR
LAYA MARY JOSEPH
RESPONDENTS/STATE AND COMPLAINANT:
1STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682 031
2MAHESH P. RAJ,
AGED 40 YEARS, S/O. P.K. RAJENDRAN, POOVATHUMKADAVIL (H),
PANANGAD P.O, THRISSUR-680 665
BY ADVS.
R1 BY SMT.SEENA C, PUBLIC PROSECUTOR
R2 BY SRI.SANTHOSH P.PODUVAL
SMT.R.RAJITHA
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON
12.12.2022, THE COURT ON 14.12.2022 PASSED THE FOLLOWING:
CRL.MC No.2981 of 2019 2
O R D E R
The petitioner is the accused in Crime
No.358/2018 of Mathilakam Police Station, which
is now pending as C.C.No.989/2018 pending before
the Judicial First Class Magistrate Court,
Kodungalloor. The offences alleged against the
petitioner are under Sections 465 and 469 of the
Indian Penal Code (IPC) and under Sections 66C
and 66D of the Information Technology Act,2000
(IT Act).
2.The facts leading to the filing of this
Crl.M.C. are as follows:
The petitioner is the wife of the 2nd
respondent/defacto complainant, and they are
living separately due to certain matrimonial
CRL.MC No.2981 of 2019 3 disputes. The marriage between the parties was
solemnized in the year, 2012 and due to some
differences of opinion between them, they have
been living separately since 2013 onwards. The 2nd
respondent filed OP No.1820/2013 before the
Family Court, Thrissur for dissolution of
marriage and the same was dismissed by the Family
Court as per the judgment dated 9.9.2016, which
is now pending in appeal before this Court as
Mat.Appeal No.175/2017. The petitioner filed
M.C.No.312/2014 before the Family Court,
Thrissur, for maintenance and the same was
allowed by the Court and the Revision Petition
filed by the 2nd respondent is pending before this
Court as RP(FC) No.80/2017.
3.While so, on 22.03.2017, a complaint was
submitted by the 2nd respondent against the
petitioner before Sub Inspector of Police,
Mathilakam Police Station alleging that the
CRL.MC No.2981 of 2019 4
petitioner created a fake profile on Facebook in
the name ‘Mpraj Mpraj’, has been sending friend
requests to his friends and also sharing
photographs with him. Based on the same,
Annexure-A1 F.I.R. was registered, and after
completing the investigation, the police
submitted Annexure-A2 final report alleging the
offences mentioned above against the petitioner.
4.This Crl.M.C. is filed to quash Annexure-
A2 final report and all further proceedings
pursuant to the same as against the petitioner
herein.
5.Heard Sri.Shyam Padman, the learned
counsel for the petitioner, Smt. Seena C., the
learned Public Prosecutor for the State and Sri.
Santhosh P. Pothuval, the learned counsel for the
2nd respondent.
6.The contention put forward by the learned
CRL.MC No.2981 of 2019 5
counsel for the petitioner is that none of the
offences alleged against the petitioner were made
out from the materials placed on record along
with Annexure A1 and Annexure-A2. On the other
hand, the learned Public Prosecutor, as well as
the learned counsel for the 2nd respondent, would
oppose the aforesaid contentions.
7.I have gone through the records and heard
the contentions raised from either side. As
mentioned above, the offences alleged against the
petitioner are under Sections 465 and 469 IPC
and also under Sections 66C and 66D of the I.T.
Act. The petitioner's case is that no materials
are available on record for attracting the
offences above. As far as the offences under
Sections 465 and 469 of IPC are concerned, the
allegation which, according to the prosecution,
constitutes the aforementioned offences is the
creation of a false profile on Facebook in the
CRL.MC No.2981 of 2019 6
name of ‘Mpraj Mpraj’, which is similar to the
name of the 2nd respondent, i.e. ‘Mahesh P Raj’.
Annexure-A3 is the photograph alleged to have
been shared by the petitioner with the friends of
the 2nd respondent while making friend requests.
It can be seen from Annexure-A3 that the shared
photograph is a marriage photo in which, the
petitioner and the 2nd respondent are seen. Even
though the 2ndrespondent alleged that the
petitioner shared several photos from the
contents of Annexure-A2 final report, it can be
seen that, the prosecution has no case that,
apart from Annexure-A3, no other photos were
shared by the petitioner. Therefore, for the
purpose of considering the question of the
culpability of the petitioner, we have to proceed
with the allegation that what was shared by the
petitioner is the photograph shown in Annexure-
A3, which is a marriage photo of both parties.
CRL.MC No.2981 of 2019 7
Therefore, the question that arises here is
whether by creating a profile in the name which
is similar to that of the 2nd respondent by the
petitioner and sharing a photograph taken during
their wedding, the offences would be attracted or
not.
8.Section 465 of the IPC deals with the
punishment for forgery, which is defined under
Section 463 IPC. As per Section 463 IPC, whoever
makes any false document or false electronic
record or part of a document or electronic record,
with the 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.
Therefore, the crucial ingredient is to ‘make a
false document or false electronic record’. The
CRL.MC No.2981 of 2019 8
making of a false document or false electronic
record is defined under Section 464 of the IPC,
which reads as follows:
“464. Making a false document
A person is said to make a false document
or false electronic record-
First-Who dishonestly or fraudulently-
(a) makes, signs, seals or executes a
document or part of a document;
(b)makes or transmits any electronic
record or part of any electronic record;
(c)affixes any electronic signature on any
electronic record;
(d)makes any mark denoting the execution
of a document or the authenticity of the
electronic signature,
with the intention of causing it to be
believed that such document or part of
document, electronic record or electronic
signature was made, signed, sealed,
executed, transmitted or affixed by or by
the authority of a person by whom or by
whose authority he knows that it was not
made, signed, sealed, executed or affixed;
or
Secondly- Who, without lawful authority,
dishonestlyorfraudulently,by
cancellation or otherwise, alters a
document or an electronic record in any
material part thereof, after it has been
made, executed or affixed with electronic
signature either by himself or by any other
person, whether such person be living or
dead at the time of such alteration; or
Thirdly- Who dishonestly or fraudulently
causes any person to sign, seal, execute or
alter a document or an electronic record or
to affix his electronic signature on any
electronic record knowing that such person
CRL.MC No.2981 of 2019 9
by reason of unsoundness of mind or
intoxication cannot, or that by reason of
deception practised upon him, he does not
know the contents of the document or
electronic record or the nature of the
alteration.”
Thus, it is evident that, for attracting offence
under Section 465 IPC, the act allegedly
committed by the petitioner must come within the
definition of Sections 463 and 464 of IPC. When
the ingredients of Section 464 IPC are
considered, it is to be noted that one of the
crucial elements to be in existence is making a
false document or false electronic record,
dishonestlyorfraudulently.Theterm
‘dishonestly’ is defined under Section 24 of the
IPC, which reads as follows:
24. “Dishonestly”
“Whoever does anything with the intention of
causing wrongful gain to one person or wrongful
loss to another person, is said to do that
thing “dishonestly”
Similarly, the term ‘Fraudulently’ is defined
under Section 25 of the IPC, which reads as
CRL.MC No.2981 of 2019 10
follows:
“25.‘Fraudulently’
“A person is said to do a thing fraudulently
if he does that thing with intent to defraud
but not otherwise.”
attract the offence under Section 465 IPC, the
document or electronic record must have been
created either dishonestly or fraudulently. In
order to treat an act as one committed
dishonestly, it must have been done to cause
wrongful gain to one person or wrongful loss to
another person. Similarly, in order to treat an
act as the one committed fraudulently, the
accused must have done that act with the
intention to defraud. The necessary ingredients
for attracting Section 464 IPC were considered by
the Hon’ble Supreme Court in Vimla v. Delhi
Administration [AIR 1963 SC 1572]. In the said
judgment, it was observed as follows:
CRL.MC No.2981 of 2019 11
“8. The definition of "false document" is a part
of the definition of "forgery". Both must be read
together. If so read, the ingredients of the
offence of forgery relevant to the present
enquiry are as follows : (1) fraudulently signing
a document or a part of a document with an
intention of causing it to be believed that such
document or part of a document was signed by
another or under his authority; (2) making of
such a document with an intention to commit fraud
or that fraud may be committed. In the two
definitions, both mens rea described in s. 464
i.e., "fraudulently" and the intention to commit
fraud in s. 463 have the same meaning. This
redundancy has perhaps become necessary as the
element of fraud is not the ingredient of other
intentions mentioned in s. 463. The idea of
deceit is a necessary ingredient of fraud, but it
does not exhaust it; an additional element is
implicit in the expression. The scope of that
something more is the subject of may decisions.
We shall consider that question at a later stage
in the light of the decisions bearing on the
subject. The second thing to be noticed is that
in s. 464 two adverbs, "dishonestly" and
"fraudulently" are used alternatively indicating
thereby that one excludes the other. That means
they are not tautological and must be given
different meanings. Section 4 of the Penal Code
defines "dishonestly" thus :
"Whoever does anything with the
intention of causing wrongful gain to
one person or wrongful loss to another
person, is said to do that thing
dishonestly".
9. "Fraudulently" is defined in s. 25 thus :
"A person is said to do a thing
fraudulently if he does that thing with
intent to defraud but not otherwise."
10. The word "defraud" includes an element of
deceit. Deceit is not an ingredient of the
definition of the word "dishonestly" while it is
an important ingredient of the definition of the
word "fraudulently". The former involves a
pecuniary or economic gain or loss while the
latter by construction excludes that element.
CRL.MC No.2981 of 2019 12
Further, the juxtaposition of the two expressions
"dishonestly" and "fraudulently" used in the
various sections of the Code indicates their
close affinity and therefore the definition of
one may give colour to the other. To illustrate,
in the definition of "dishonestly", wrongful gain
or wrongful loss is the necessary ingredient.
Both need not exist, one would be enough. So too,
if the expression "fraudulently" were to be held
to involve the element of injury to the person or
persons deceived it would be reasonable to assume
that the injury should be something other than
pecuniary or economic loss. Though almost always
an advantage to one causes loss to another and
vice versa, it need not necessarily be so. Should
we hold that the concept of "fraud" would include
not only deceit but also some injury to the
person deceived, it would be appropriate to hold
by analogy drawn from the definition of
"dishonestly" that to satisfy the definition of
"fraudulently" it would be enough if there was a
non-economic advantage to the deceiver or a non-
economic loss to the deceived. Both need not co-
exist.”
10. From the principles laid down by the
Hon’ble Supreme Court as above, it is clear that,
in order to treat an act as a fraudulent act,
there must be an element of deceit or an injury.
Injury is defined under Section 44 of the IPC,
which reads as follows:
“44.‘Injury’
The word “injury” denotes any harm whatever
illegally caused to any person, in body, mind,
reputation or property.”
CRL.MC No.2981 of 2019 13 Therefore, it is evident that, any harm illegally caused to a person would come under the term ‘injury’. In this case, the act alleged against the petitioner is creating a profile on Facebook by using a name which is similar to the name of the petitioner and sharing of the marriage photo of the petitioner as well as the 2nd respondent. The crucial aspect to be noticed is that the prosecution does not have any material to show that the petitioner had shared anything which causes loss of reputation or otherwise affects any economical or non-economical injury to the 2nd respondent. Merely by creating a profile using a name similar to the name of the 2nd respondent, it
cannot be concluded that an offence has been
committed. To complete the offence, the accused
must have done something more which caused injury
to the complainant or exposed the complainant to
any such injuries. In this case, it is evident
CRL.MC No.2981 of 2019 14 that the petitioner allegedly created the said profile on 4.12.2016 and deleted the said profile on 2.5.2017, which was before the registration of the crime. Apart from the fact that, some friend requests were seen sent to some of the friends of the 2nd respondent and sharing the wedding photo, no other acts which caused any injury or damage to the petitioner either economically, physically or to the reputation of the petitioner had occurred. Apart from sharing the wedding photographs, no other acts were alleged. From the available materials, it cannot be concluded that, the petitioner had created the profile with the intention to cause any loss/injury to the 2nd respondent. Mere act of creating a profile on
Facebook in the name similar to that of the 2nd
respondent, without causing any actual injury as
defined under Section 44 of the IPC, cannot be
treated as an act, committed by the petitioner
CRL.MC No.2981 of 2019 15 dishonestly or fraudulently. Therefore, the offence under Section 465 of IPC would not be attracted in the facts of this case.
11.Section 469 IPC is yet another offence
alleged against the petitioner. If the act of the
petitioner does not come within the definition of
forgery, the offence under Section 469 IPC also
would not be attracted as one of the necessary
ingredients for attracting Section 469 IPC is the
commission of forgery. Another ingredient for
attracting the offence under Section 469 IPC is
to commit forgery with the intention to harm the
reputation. In this case, I have already found
that, by merely creating a Facebook profile using
a name similar to that of the 2nd respondent, no
loss of reputation would be caused. It is also
discernible from the records that the prosecution
has no case that the petitioner has done anything
which would result in the loss of reputation of
CRL.MC No.2981 of 2019 16
the 2nd respondent. Therefore, the said offence is
also not attracted.
12.The other offences are under Sections 66C
and 66D of the Information Technology Act. The
aforesaid provisions read as follows:
“66C Punishment for identity theft. -Whoever,
fraudulently or dishonestly make use of the
electronic signature, password or any other
unique identification feature of any other
person, shall be punished with imprisonment of
either description for a term which may extend to
three years and shall also be liable to fine with
may extend to rupees one lakh.”
“66D Punishment for cheating by personation by
using computer resource. -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.”
On reading the aforesaid provisions, it can be
seen that, one of the basic requirements to
attract both the said offences is that the act
must have been committed fraudulently or
dishonestly. In this case, while discussing the
culpability of the petitioner for the offences
CRL.MC No.2981 of 2019 17 punishable under Sections 465 IPC, I have already found that the act allegedly committed by the petitioner cannot be treated as the one committed dishonestly or fraudulently. In the light of the said finding, the offences alleged against the petitioner under Sections 66C and 66D of the Information Technology Act would not also be attracted.
13. There is yet another aspect which shows
that no culpability can be attributed to the
petitioner. As per the prosecution case, the
profile was created on 4.12.2016 and it was
allegedly maintained by the petitioner till
2.5.2017. During the said period, the petitioner
was continuing as the wife of the 2nd respondent
even though they were living separately. The
petitioner advanced a definite case that she
resisted the petitions submitted by the 2nd
respondent before the Family Court for
CRL.MC No.2981 of 2019 18
dissolution of marriage under the hope that the
marriage between them would work out and,
ultimately, she would be able to continue her
life along with the 2nd respondent as husband and
wife. Therefore, it was specifically contended by
the learned counsel for the petitioner that, as
she was under a bona fide belief that the
relationship between the parties would be
recommenced, even if it is found that she created
a profile in a name which is similar to that of
the 2nd respondent, she is justified in doing
that. In the peculiar facts of this case, I find
that the contention raised by the learned counsel
for the petitioner is only to be accepted.
14. Apart from the above, it is also
contended by the petitioner that the mere
creation of a profile without any noticeable
injury or harm to the 2nd respondent, would not
attract any offence. It is pointed out that, if
CRL.MC No.2981 of 2019 19
at all the same is treated as an act against the
interest of the 2nd respondent, its impact is so
trivial that no ordinary man would be affected.
To substantiate the contentions above, the
learned counsel relies on the observations made
by this Court in Narayanan and Ors. v. State of
Kerala [1987 CriLJ 741]. In paragraph 5 of the
said decision, it was observed as follows:
“5. When considering the question whether the
acts alleged against the petitioners would amount
to an offence of wrongful restraint, the maxim
"de minimis non curat lex" (the law does not take
account of trifles) should be borne in mind if
the harm caused or intended to be caused is so
slight that no person of ordinary sense and
temper would complain of such harm. The above
principle is embodied' in Section 95 of the Code.
The definitions of various offences in the Code
are so framed as to bring a number of activities
within the letter of the penal law. If we are to
go by the definitions alone, "it is theft to dip
a pen in another man's ink, it is mischief to
crumble one of his wafers, it is assault to cover
him with a cloud of dust by riding past him, it
is hurt to incommode by pressing against him in
getting into a carriage." At the same time those
are but few of the innumerable acts without the
performance of which men cannot live together in
society, and acts which it is desirable that they
should do. It depends upon the degree of the acts
and that is why the authors of the Code took
particular care in striking a note of caution by
incorporating Section 95 in the Code.”
CRL.MC No.2981 of 2019 20 As observed by this Court in the aforesaid decision, Section 95 of IPC provides that nothing is an offence by reason that it causes, or that it is intended to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no person of ordinary sense and temper would complain of such damage. In this
case, the allegations against the petitioner were
that she created a profile using a similar name
to that of the 2nd respondent and shared their
marriage photographs. Even if it is treated as an
act against the 2nd respondent, it will fall under
the class of an act contemplated under Section 95
of the IPC. As mentioned above, mere creation of
a profile would not cause any harm to the
petitioner, mainly when the parties were husband
and wife and photos allegedly shared by the
petitioner was their wedding photo, wherein both
of them were shown. The prosecution has no case
CRL.MC No.2981 of 2019 21
that the petitioner used any abusive language or
shared anything which affected the privacy of the
2nd respondent through the said profile. Apart
from creating a profile and sharing the wedding
photograph, no other misuse of the said profile
is alleged and no other materials indicating such
misuse are there in the records produced by the
prosecution. Therefore, I am of the view that the
prosecution initiated against the petitioner
based on Annexure-A1 and Annexure-A2 is a clear
abuse of the process of law and the same is
liable to be terminated prematurely, invoking the
powers of this Court conferred under Section 482
of Cr.PC.
In the result, this Crl.M.C. is allowed,
Annexure-A2 final report submitted in Crime
No.358/2018 of Mathilakam Police Station and all
further proceedings thereof, including the
proceedings in C.C.No.989/2018 on the file of the
CRL.MC No.2981 of 2019 22 Judicial First Class Magistrate Court,
Kodungalloor are hereby quashed.
Sd/-
ZIYAD RAHMAN A.A. JUDGE
pkk
CRL.MC No.2981 of 2019 23
APPENDIX OF CRL.MC 2981/2019
PETITIONER’S ANNEXURES:
ANNEXURE A1 |
CERTIFIED COPY OF |
THE FIR IN CRIME NO. |
|---|---|---|
358/2018 DATED 16POLICE STATION. |
.05.2018 OF MATHILAKAM |
|
ANNEXURE A2 |
CERTIFIED COPY OF |
THE FINAL REPORT DATED |
03.10.2018 IN C.C. |
NO. 989/2018 PENDING |
|
BEFORE THE JUDICIALCOURT, KODUNGALLUR. |
FIRST CLASS MAGISTRATE |
|
ANNEXURE A3 |
TRUE COPY OF THEMESSENGER CHAT. |
SCREENSHOTS OF FACEBOOK |
ANNEXURE A4 |
CERTIFIED COPY OF |
THE SUBSCRIBER DETAILS |
DATED 01.08.2018 RE |
CEIVED FROM JIO AS PER |
|
THE REQUEST OF THE |
DISTRICT POLICE CHIEF, |
|
THRISSUR RURAL. |
||
ANNEXURE A5 |
CERTIFIED COPY OF |
THE FACEBOOK BUSINESS |
RECORD DATED 05.05.2 |
017. |
|
ANNEXURE A6 |
TRUE COPY OF THE |
161 STATEMENT OF THE |
WITNESS IN C.C. |
NO. 989/2018 SUBMITTED |
|
BEFORE THE JUDICIALCOURT, KODUNGALLUR. |
FIRST CLASS MAGISTRATE |
3 issues framed by the court
Whether creating a Facebook profile with a name similar to a spouse and sharing a wedding photo amounts to forgery or identity theft.
Whether the alleged act caused the requisite infringement or injury to attract criminal liability under IPC and IT Act.
Whether the criminal complaint is a clear abuse of the process of law that warrants termination under Section 482 CrPC.
Colour shows how this judgement treated each authority
Vimla v. Delhi AdministrationRelied on¶96
Vimla v. Delhi Administration [AIR 1963 SC 1572] · Who else cites this
Narayanan and Ors. v. State of KeralaRelied on¶139
Narayanan and Ors. v. State of Kerala [1987 CriLJ 741] · Who else cites this
3 provisions across 3 enactments
SWAPNA T.D.
STATE OF KERALA
MAHESH P. RAJ
ZIYAD RAHMAN A.A.
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court