Saket Courts, New Delhi: Sonu Agnihotri, Additional Sessions Judge – 03, addressed a matter, wherein a wife using improper means procured the information of bank accounts of father-in-law and mother-in-law but it was noted that her intention was not dishonest.
A criminal revision under Section 397/399 of the Code of Criminal Procedure was preferred by the accused against the impugned order passed by the Metropolitan Magistrate whereby the order of framing of charge under Section 72A of the IT Act and Section 409 of Penal Code, 1860 was passed against the accused.
Complainants were the father-in-law and mother-in-law of the petitioner and due to issues between their son and daughter-in-law, the son left the company of his wife and started living at his matrimonial home.
Petitioner had filed a complaint under Section 12 of the PWDV Act against the son of the complainant wherein she sought maintenance from her husband.
It was stated that 12 Court proceedings have been pending between the petitioner and son of the complainants with regard to matrimonial disputes.
Vide the impugned order, the charge had been ordered to be framed against the petitioner under Section 72A of the IT Act and Section 409 of Penal Code, 1860
Analysis, Law and Decision
Section 72 A of the Information Technology Act provides as:
Punishment for disclosure of information in breach of lawful contract. -Save as otherwise provided in this Act or any other law for the time being in force, any person including an intermediary who, while providing services under the terms of lawful contract, has secured access to any material containing personal information about another person, with the intent to cause or knowing that he is likely to cause wrongful loss or wrongful gain discloses, without the consent of the person concerned, or in breach of a lawful contract, such material to any other person, shall be punished with imprisonment for a term which may extend to three years, or with fine which may extend to five lakh rupees, or with both.
Section 409 IPC:
Criminal breach of trust by public servant, or by banker, merchant or agent.—Whoever, being in any manner entrusted with property, or with any dominion over property in his capacity of a public servant or in the way of his business as a banker, merchant, factor, broker, attorney or agent, commits criminal breach of trust in respect of that property, shall be punished with 1[imprisonment for life], or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Further, Section 405 IPC defines Criminal Breach of Trust.
Whether Section 72 of the IT Act will be attracted in the present case?
Petitioner was the daughter-in-law of the complainants who was working with ICICI Bank and as per the case of prosecution, petitioner while misusing her position accessed bank accounts and FDR details of complainants with ICICI Bank and used the said details in an application filed before MM in a complaint filed by her under provisions of Domestic Violence Act.
Complainants further alleged that the petitioner in connivance with ICICI Bank jeopardized the safety and security of property and person of the complainants who were senior citizens.
Though the allegations were against both the petitioner and ICICI Bank, surprisingly, the charge-sheet was silent about any investigation made qua role of higher officials of ICICI Bank.
In Court’s opinion, without proceeding against ICICI Bank was obligated to maintain secrecy regarding the financial information of the complainants, the petitioner could not have solely proceeded.
It was noted that the petitioner used her ID to access the financial information of the complainants.
High Court expressed that,
Manner of bringing the information before Court of law may not be morally right but it cannot be said by this act of petitioner that, petitioner caused or intended to cause any wrongful loss to petitioners or to cause wrongful gain to herself as merely by disclosing this information, no pecuniary benefit is stated to have been received by petitioner and if any maintenance or any other amount is granted by Court of law, that cannot be termed to be wrongful gain to petitioner.
In view of the above observation, the petitioner’s act did not fall within the definition of wrongful gain or wrongful loss as defined under Section 23 of the Penal Code, 1860.
The second limb of ingredients of an offence under Section 72 A of the IT Act was that the petitioner was in breach of lawful contract divulged financial information of complainants to any other person.
Bench stated that, breach of lawful contract if any was made by ICICI Bank and not by the petitioner directly. So, the act of the petitioner does not satisfy the ingredients of the offence under Section 72A of the IT Act.
With respect to framing of charge under Section 409 IPC is concerned, the commission of a criminal breach of trust by the banker is a must.
As per Section 405 IPC, it requires entrustment of property or with any dominion over property coupled with dishonest misappropriation or conversion to one’s use that property or disposal of the property in violation of the direction of law prescribing the mode in which such trust is to be discharged or of any legal contract, expressed or implied which the person has made touching discharge of such trust or willfully suffers any other person so to do.
In the instant case, the petitioner was not directly entrusted with property which was bank accounts and FDR information pertaining to complainants. Hence no dishonest misappropriation or conversion to petitioner’s use of the information pertaining to complainants bank accounts by use of same in judicial proceedings, as by bringing the said information before the Court she wanted to bring before the conduct of complainants’ son
There can not be said to be any dishonest use or disposal of information pertaining to bank accounts of complainants and their FDRs.
Therefore, in view of the above discussion, it was noted that the trial court failed to meet the parameters of the law and required the impugned order to be set aside. [Chavi Anurag Goyal v. State, Criminal Revision No. 19 of 2021, decided on 24-2-2022]