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2022 Supreme(Kar) 362
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
M. Nagaprasanna, J.
Sanjana Fernandes @ Raveera D/O. William Fernandes – Petitioner
Versus
State of Karnataka Represented By North Cen Police Station and ors. – Respondents
Criminal Petition No. 8929 of 2021
Decided On : 02-09-2022
Advocate Appeared:
For the Petitioner:Sri. Amar Correa, Advocate
For the Respondent:Sri K.S.Abhijita, HCGP, Sri S. Diraviam Dinesh, Advocate
Point of Law: Section 415 mandates that if the accused has induced the victim or lured the victim into parting with any property with a dishonest intention at the inception, it becomes an ingredient for the offence of cheating.
Headnote:
Information Technology Act, 2000 - Sections 66(C), (D) and 67(A) – Indian Penal Code, 1860 - Sections 147, 148, 149, 406, 329, 386 415, 419, 420, 467, 468, 471 – Criminal Procedure Code, 1973 - Section 482 - Social Media - Offence of Cheating - Classes of wellness therapy goes little wrong when complainant begins to get interested in meeting wellness therapist, petitioner, as they had never met each other - Transaction or classes had happened through instagram - Complainant getting interested in petitioner started sending lewd messages and started to post indecent contents containing pornography and other material on inbox of petitioner - Then petitioner blocks account of complainant - It is then complainant begins to dig at veracity of therapy that petitioner claimed and comes to know that petitioner had 15 such profiles of instagram or other social media and then registers a complaint against petitioner for offence of cheating. [Para 9]
Finding of the Court: Impugned judgment and order [Radhey Shyam Gupta v. State of U.P.,] passed by High Court quashing criminal proceedings in exercise of powers under Section 482 CrPC is unsustainable and same deserves to be quashed and set aside and is accordingly quashed and set aside - In light of aforesaid facts and judgment of Apex Court in case of Kaptan Singh, Court do not find any warrant to interfere with case on hand as petitioner has not demonstrated by production of such unimpeachable evidence of sterling character for this Court to interfere or interject the proceedings in exercise of its jurisdiction under Section 482 of CrPC - A parting observation in case may not be inapt - It is in public domain that there are huge mushrooming of so called therapies and therapists on social media i.e., instagram, twitter or facebook as case would be, wherein therapists pose themselves to be in field of any therapy - It is also in public domain that they are all pseudo-therapists who are “instagram influencers”- Present case concerns psychosomatic therapy or wellness therapy - Therapists of kind, are many in number on social media, in reality, they are not bound by any ethics or not regulated by any norms - Cases of this nature have begun to emerge in large proportions where people wanting to get some therapy fall prey to such pseudo-therapists - Therefore, it is time that Government comes up with some regulatory measure to check growth of such therapists - Since wellness therapy has generated such illness as is complained of by complainant and finding no merit in petition.
Result: Petition dismissed.
ORDER :
The petitioner is before this Court calling in question proceedings in C.C.No.22955 of 2021 pending on the file of the I Additional Chief Metropolitan Magistrate, Bangalore arising out of crime in Crime No.245 of 2021 registered for offences punishable under Sections 66(C), 66(D) and 67(A) of the Information Technology Act, 2000 and Sections 419 and 420 of the IPC.
2. Heard Sri Amar Correa, learned counsel for the petitioner, Shri K.S.Abhijith, learned High Court Government Pleader for respondent No.1 and Sri S.Diraviam Dinesh, learned counsel appearing for respondent No.2.
3. Brief facts, as projected by the prosecution, are as follows:
The complainant is an information technology professional. The petitioner and the complainant come in contact with each other with a dating app ‘Tinder’. Both of them get acquainted to each other and it appears that on a particular night when they were on chat, the complainant claims to be completely stressed and expresses such stress to the petitioner. The petitioner then represents that she has an instagram page “positivity-for-a-360-life” and she is a Wellness Therapist who would advocate and promote general well being of mind, body and soul. The complainant on the representation being made by the petitioner with regard to her qualification in the therapist goes on transferring amounts on class to class basis. After the end of the class, the complainant claims to be satisfied of the class and then transferred the money.
4. This goes on throughout the period the country was engulfed with Covid-19 and intermittent lock-down being in place. The classes of wellness therapy goes little wrong when the complainant begins to get interested in meeting the wellness therapist, the petitioner, as they had never met each other. The transaction or the classes had happened through instagram. The complainant getting interested in the petitioner started sending lewd messages and started to post indecent contents containing pornography and other material on the inbox of the petitioner. Then the petitioner blocks the account of the complainant. It is then the complainant begins to dig at the veracity of the therapy that the petitioner claimed and comes to know that the petitioner had 15 such profiles of instagram or other social media and then registers a complaint against the petitioner for offence of cheating and the offence under the Information Technology Act in Crime No.245 of 2021. The Police after investigation file a charge sheet for the very offences so alleged earlier on 4-08-2021 in C.C.No.22955 of 2021. It is the filing of the charge sheet that drives the petitioner to this Court in the subject petition.
5. The learned counsel for the petitioner would contend that the petitioner who is a wellness therapist is innocent of what is alleged against her. It is the complainant who approached the petitioner for his well being and after taking treatment, on being satisfied with every class, has voluntarily transferred all the amounts. It is only because the petitioner did not yield to the lewd requests of the complainant, the complaint comes to be registered. It is purely a matter of contract between the petitioner and the complainant who has consented to the classes and seeks quashment of entire proceedings.
5.1. On the other hand, the learned counsel appearing for the 2nd respondent/complainant would refute the submissions to contend that it is not the complainant who approached the petitioner since the first message comes from the petitioner to the complainant in a particular name called ‘Rishta’ which is not her name. She then represented that she is a wellness therapist and lured the petitioner into treatment and ultimately cheated the petitioner for transfer of close to Rs.3,15,000/-and would, therefore, contend that the petitioner is a con-woman and seeks dismissal of the petition. The learned High Court Government Pleader would also contend that there are abundant materials of cheating against th
