Case 1: First conviction in India
A complaint was filed in by Sony India Private Ltd, which runs a website called sony-sambandh.com, targeting Non Resident Indians. The website enables NRIs to send Sony products to their friends and relatives in India after they pay for it online.
The company undertakes to deliver the products to the concerned recipients. In May 2002,someone logged onto the website under the identity of Barbara Campa and ordered a Sony Colour Television set and a cordless head phone.
A lady gave her credit card number for payment and requested that the products be delivered to Arif Azim in Noida. The payment was duly cleared by the credit card agency and the transaction processed. After following the relevant procedures of due diligence and checking, the company delivered the items to Arif Azim.
At the time of delivery, the company took digital photographs showing the delivery being accepted by Arif Azim.
The transaction closed at that, but after one and a half months the credit card agency informed the company that this was an unauthorized transaction as the real owner had denied having made the purchase.
The company lodged a complaint for online cheating at the Central Bureau of Investigation which registered a case under Section 418, 419 and 420 of the Indian Penal Code.
The matter was investigated into and Arif Azim was arrested. Investigations revealed that Arif Azim, while working at a call centre in Noida gained access to the credit card number of an American national which he misused on the company’s site.
The CBI recovered the colour television and the cordless head phone.
The accused admitted his guilt and the court of Shri Gulshan Kumar Metropolitan Magistrate, New Delhi, convicted Arif Azim under Section 418, 419 and 420 of the Indian Penal Code — this being the first time that a cyber crime has been convicted.
The court, however, felt that as the accused was a young boy of 24 years and a first-time convict, a lenient view needed to be taken. The court therefore released the accused on probation for one year.
Case-2: First juvenile accused in a cyber crime case
In April 2001 a person from New Delhi complained to the crime branch regarding the website. Amazing.com, he claimed, carried vulgar remarks about his daughter and a few of her classmates. During the inquiry, print-outs of the site were taken and proceedings initiated.
After investigation a student of Class 11 and classmate of the girl was arrested.
The juvenile board in Nov 2003 refused to discharge the boy accused of creating a website with vulgar remarks about his classmate.
The accused’s advocate had sought that his client be discharged on the ground that he was not in a stable state of mind. Seeking discharge, the advocate further said that the trial has been pending for about two years.
While rejecting the accused’s application, metropolitan magistrate Santosh Snehi Mann said: ‘The mental condition under which the juvenile came into conflict with the law shall be taken into consideration during the final order.’ Mann, however, dropped the sections of Indecent Representation of Women (Prohibition) Act.
The accused would face trial under the Information Technology Act and for intending to outrage the modesty of a woman. She held the inquiry could not be closed on technical ground, especially when the allegations were not denied by the accused.
Case 3: First case convicted under Information Technology Act 2000 of India
The case related to posting of obscene, defamatory and annoying message about a divorcee woman in the yahoo message group. E-Mails were also forwarded to the victim for information by the accused through a false e-mail account opened by him in the name of the victim. The posting of the message resulted in annoying phone calls to the lady in the belief that she was soliciting.
Based on a complaint made by the victim in February 2004, the Police traced the accused to Mumbai and arrested him within the next few days. The accused was a known family friend of the victim and was reportedly interested in marrying her. She however married another person. This marriage later ended in divorce and the accused started contacting her once again. On her reluctance to marry him, the accused took up the harassment through the Internet.
On 24-3-2004 Charge Sheet was filed u/s 67 of IT Act 2000, 469 and 509 IPC before The Hon’ble Addl. CMM Egmore by citing 18 witnesses and 34 documents and material objects. The same was taken on file in C.C.NO.4680/2004. On the prosecution side 12 witnesses were examined and entire documents were marked.
The Defence argued that the offending mails would have been given either by ex-husband of the complainant or the complainant her self to implicate the accused as accused alleged to have turned down the request of the complainant to marry her.
Further the Defence counsel argued that some of the documentary evidence was not sustainable under Section 65 B of the Indian Evidence Act. However, the court based on the expert witness of Naavi and other evidence produced including the witness of the Cyber Cafe owners came to the conclusion that the crime was conclusively proved.
The court has also held that because of the meticulous investigation carried on by the IO, the origination of the obscene message was traced out and the real culprit has been brought before the court of law. In this case Sri S. Kothandaraman, Special Public Prosecutor appointed by the Government conducted the case.
Honourable Sri.Arulraj, Additional Chief Metropolitan Magistrate, Egmore, delivered the judgement on 5-11-04 as follows:
“The accused is found guilty of offences under section 469, 509 IPC and 67 of IT Act 2000 and the accused is convicted and is sentenced for the offence to undergo RI for 2 years under 469 IPC and to pay fine of Rs.500/-and for the offence u/s 509 IPC sentenced to undergo 1 year Simple imprisonment and to pay fine of Rs.500/- and for the offence u/s 67 of IT Act 2000 to undergo RI for 2 years and to pay fine of Rs.4000/- All sentences to run concurrently.”
Case 4: Father & son convicted under IT act in Kerala
The Additional District and Sessions Court here has upheld a lower court’s verdict in the first cyber case filed in the State sentencing a Pentecostal Church priest and his son to rigorous imprisonment in 2006.
Disposing of the appeal filed by the priest T.S. Balan and his son, Aneesh Balan, against the order of the Chief Judicial Magistrate, on Wednesday,
Additional District Judge T.U. Mathewkutty said it was time the government took effective measures to check the growing trend of cyber crimes in the State.
The court upheld the magistrate’s order sentencing the two to three-year rigorous imprisonment and imposing a fine of Rs. 25,000 under Section 67 of the information technology (IT) Act; awarding six months rigorous imprisonment under Section 120(B) of the Indian Penal Code; and ordering one year rigorous imprisonment and imposing a fine of Rs. 10,000 under Section 469 of the code.
The court revoked the sentence under Section 66 of the IT Act.
The cyber case dates back to January-February 2002 and the priest and his son became the first to be convicted of committing a cyber crime.
The two were found guilty of morphing, web-hosting and e-mailing nude pictures of Pastor Abraham and his family.
Balan had worked with the pastor until he fell out with him and was shown the door by the latter.
Balan joined the Sharon Pentecostal Church later.
The prosecution said the duo had morphed photographs of Abraham, his son, Valsan Abraham, and daughter, Starla Luke, and e-mailed them from fake mail IDs with captions.
The morphed pictures were put on the web and the accused, who edited a local magazine called The Defender, wrote about these photos in his publication.
Valsan received the pictures on the Internet and asked his father to file a complaint to the police. A police party raided the house of Balan and his son at Perumbavoor and collected evidences.
The magistrate’s verdict came after a four-year trial, for which the court had to procure a computer with Internet connection and accessories.
The police had to secure the services of a computer analyst too to piece together the evidences. Twenty-nine witnesses, including the internet service provider and Bharat Sanchar Nigam Ltd., had to depose before the court.
Case 5: Well-known orthopaedist in Chennai got life
Dr. L Prakash stood convicted of manipulating his patients in various ways, forcing them to commit sex acts on camera and posting the pictures and videos on the Internet.
The 50-year-old doctor landed in the police net in December 2001 when a young man who had acted in one of his porn films lodged a complaint with the police.
Apparently the doctor had promised the young man that the movie would be circulated only in select circles abroad and had the shock of his life when he saw himself in a porn video posted on the web.
Subsequent police investigations opened up a Pandora's box. Prakash and his younger brother, settled in the US, had piled up close to one lakh shots and video footages, some real and many morphed.
They reportedly minted huge money in the porn business, it was stated.
Fast track court judge R Radha, who convicted all the four in Feb 2008 , also imposed a fine of Rs 1.27 lakh on Prakash, the main accused in the case, and Rs 2,500 each on his three associates - Saravanan, Vijayan and Asir Gunasingh.
The Judge while awarding life term to Prakash observed that considering the gravity of the offences committed by the main accused, maximum punishment under the Immoral Trafficking Act (life imprisonment) should be given to him and no leniency should be shown.
The Judge sentenced Prakash under the Immoral Trafficking Act, IPC, Arms Act and Indecent Representation of Women (Prevention) Act among others.
Case 6:Juvenile found guilty for sending threatening email
A 16 year old student from ahmedabad who threatedned to blow up Andheri Railway station in an email message was found guilty by the Juvenile court in Mumbai.
A private news channel received an email on 18 March 2008 claiming sender as Dawood Ibrahim gang saying a bomb would be planted on an unspecified train to blow it up.
The case was registered in Andheri Police station under section 506 of IPC and transfered to cyber crime investigation cell. During Investigation CCIC traced the cyber cafe from which the email account was created and threatening email was sent.
Cafe owner told police about freinds which had come that day to surf the net.Police Summoned them and found that the system which was used to send email was accessed by only one customer. On 22nd March 08, police arrested the boy a Class XII science student who during interrogation said that he sent the email for fun of having his prank flashed as “breaking news’’ on television.
Case 7:Two Nigerians sentenced 7 years RI for online fraud
A local court in Malappuram district in Kerala sentenced two Nigerians to five years rigorous imprisonment on July 20, 2011 in a cyber-crime case. The two had cheated a doctor in the district of Rs 30 lakh about two years ago. Johnson Nwanonyi(32) and Michel Obiorahmuozboa (34), both hailing from Anambra state in Nigeria, were sentenced each under sections 420(cheating)-5 years, and 468(forgery)-5 years of IPC and section 66(D) (phishing) of Information Technology (Amendment) Act 2008 -2 years and a fine of Rs 1.25 lakh by a Chief Judicial Magistrate V Dileep in Manjeri in Malappuram district. The sentence would run concurrently.
According to the charges filed by the Karipur police, the duo had cheated the doctor Dr C C Thomas, hailing from Valluvambram in Malappuram district after they sent an e-mail inviting application to recover a huge sum of unclaimed money left behind by a Nigerian businessman. They had advertised that the money, kept aside for charitable hospital, was lying unclaimed in a bank. When the doctor responded to the e-mail, they tricked him by asking to pay Rs 30 lakh as processing fee. But a planned move by the police and the doctor succeeded when the Nigerians were lured into Kerala in March 2010. They were then arrested by the Karipur police. The strong evidence based on which the prosecution presented the case became crucial in the first verdict against financial fraud under the IT Act. Deputy Director for Prosecution V C Ismayil appeared for the prosecution.
Case 8:AP High Court dismisses Google's Petition contending being intermediary it can not be held liable for defamation
THE HONOURABLE SRI JUSTICE SAMUDRALA GOVINDARAJULU, AP High Court
Crl.P.No.7207 OF 2009
Google India Pvt. Ltd.,
M/s.Visaka Industries Limited and another
Counsel for the Petitioner : Sri Nunepally Harinath
Counsel for the 1st Respondent: Sri N.V.Anantha Krishna
Counsel for the 2nd respondent: Public Prosecutor
The petitioner/A-2 is accused of offences punishable under Sections 120-B, 500, 501/34 I.P.C in C.C. No.679 of 2009 on the file of XI Additional Chief Metropolitan Magistrate, Secunderabad along with another. The petitioner/A-2 is Google India Private Limited represented by its Managing Director (Sales and Operations). The 1st respondent/complainant is Visaka Industries Limited, Secunderabad represented by its authorised signatory who is its Deputy Manager- Legal. The complainant is engaged in business of manufacturing and selling of Asbestos cement sheets and allied products. It is alleged that A-1 viz., Gopala Krishna is a Co-ordinator "Ban Asbestos India" a group which is hosted by A-2 and publishes regular articles in the said group and that on 21.11.2008 an article was published in the said group and it was captioned as "poisoning the system; Hindustan Times" aiming at a single manufacturer of Asbestos cement products viz., the complainant and names of renowned politicians of the country G.Venkata Swamy and Sonia Gandhi who have nothing to do with the ownership or management of the complainant-company were named in that article. It is further alleged that on 31.07.2008 another article captioned as "Visaka Asbestos Industries making gains" and that both the above articles contained defamatory statements against the complainant and they are available in Cyber space in the form of articles for world wide audience. In the complaint, details of defamatory remarks made in several other articles published by A-1 in A-2 group are given in detail, which details may not be necessary for the purpose of disposal of this criminal petition.
2) It is contended by the senior counsel appearing for the petitioner/A-2 that actions of intermediaries such as Google Inc., which is a service provider providing platform for end users to upload content, does not amount to publication in law and consequently the question of holding such intermediaries liable for defamation does not arise. Senior Counsel appearing for the petitioner placed reliance on Section 79 of the Information Technology Act, 2000 (in short, the Act) in support of this contention.
3) Section 79 which occurs in Chapter XII of the Act originally as it stood enacted in the year 2000 reads as follows:
"CHAPTER XII NETWORK SERVICE PROVIDERS NOT TO BE LIABLE IN CERTAIN CASES
79. Network service providers not to be liable in certain cases:
For the removal of doubts, it is hereby declared that no person providing any
service as a network service provider shall be liable under this Act, rules or
regulations made thereunder for any third party information or data made
available by him if he proves that the offence or contravention was committed
without his knowledge or that he had exercised all due diligence to prevent the
commission of such offence or contravention.
Explanation. For the purposes of this section,
(a) "network service provider" means an intermediary;
(b) "third party information" means any information dealt with by a network service provider in his capacity as an intermediary."
The said provision exempts network service providers from liability under the Act, rules or regulations made thereunder for any third party information or data made available by him. It did not exempt a network service provider from liability muchless criminal liability for the offences under other laws or more particularly under the Indian Penal Code. Further, the above provision exempts network service provider from liability, only on proof that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention. Proof in that regard can be let in by way of leading evidence by the accused. Therefore, the said question is a question of fact which this Court may not go into in this petition filed under Section 482 Cr.P.C.
4) Chapter XII of the Act including Section 79 was amended by the Information Technology (Amendment) Act, 2008 (10 of 2009) dated 05.02.2009 with effect from 27.10.2009 by way of substituting the following in the place of original chapter:
INTERMEDIARIES NOT TO BE LIABLE IN CERTAIN CASES
79. Exemption from liability of intermediary in certain cases:
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third party information, data, or communciation link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if- (a) the functions of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not-
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of Sub-section(1) shall not apply if-
(a) The intermediary has conspired or abetted or aided or induces whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
Explanation.- For the purposes of this section, the expression "third party information" means any information dealt with an intermediary in his capacity as an intermediary."
It is only under the said amendment, non-obstenti clause was incorporated in Section 79 keeping application of other laws outside the purview in a fact situation covered by the said provision. Now, after the amendment, an intermediary like a network service provider can claim exemption from application of any other law in respect of any third party information, data or communication link made available or hosted by him; provided he satisfied the requirements under Sub-section (2) of Section 79. Further, as per amended Sub- section (3) of Section 79, the exemption under Sub-section (1) cannot be applied by any Court and cannot be claimed by any intermediary in case the intermediary entered into any conspiracy in respect thereof. Also, the intermediary cannot claim exemption under Sub-section (1) in case he fails to expeditiously remove or disable access to the objectionable material or unlawful activity even after receiving actual knowledge thereof. In the case on hand, in spite of the 1st respondent issuing notice bringing the petitioner about dissemination of defamatory material and unlawful activity on the part of A-1 through the medium of A-2, the petitioner/A-2 did not move its little finger to block the said material or to stop dissemination of the unlawful and objectionable material. Therefore, the petitioner/A-2 cannot claim any exemption either under Section 79 of the Act as it stood originally or Section 79 of the Act after the amendment which took effect from 27.10.2009. The present case in the lower Court was instituted in January, 2009 relating to the offences which are being perpetrated from 31.07.2009 onwards i.e., since long prior to the amendment to the said provision.
5) There is no exemption of any criminal liability in respect of a company which is a juristic person and which has no body that can be damned or contemned. In case found guilty, the petitioner company can be awarded with appropriate punishment though not corporal punishment. In that view of the matter, I find no merit in this criminal petition.
6) Accordingly, the Criminal Petition is dismissed.