IMPORTANT POINTS
(1) Notice under Section 91 of Cr.P.C. though requires to be specific and not a fishing expedition, is not per se illegal on suspicion of police to a money trail, which has a link between several accounts.
(2) Protection of consumer privacy cannot eclipse lawful imperative of investigating officers to secure evidence and take investigation to its logical conclusion – Confidentiality must co-exist with accountability.

ORDER (CAV)

The petitioner/Phonepe Private Limited is before this Court seeking a direction by issuance of writ in the nature of mandamus directing the respondent/Police to conduct a comprehensive investigation in Crime No.193 of 2022 strictly in consonance with several enactments which the petitioner says that it is governed by. A consequent declaration is also sought that the notice under Section 91 of the Cr.P.C., dated 07-12-2022 to be bad in law.

2. Shorn of unnecessary details, the facts germane are as follows:

The petitioner-M/s Phonepe Private Limited is a company incorporated under the Companies Act, 1956. The petitioner is said to be a leading player in the digital payments ecosystem. The petitioner is a well known for its technology and user interface and is said to be pioneer in developing cutting edge digital payment solution platform. The application software that can be installed on all mobile phones through the operating system called as Phonepe app. The petitioner further avers in the petition that it is only an intermediary as defined under the Information Technology Act, 2000 (‘IT Act’ for short) and facilitates services as a system provider and petitioner and only provides a platform for users to transfer and receive monies on a day to-day basis.

3. The petitioner, a system provider under the unified payments interface payments ecosystem, is said to be governed and regulated under the Payment and Settlement System Act, 2007. The issue in the lis is whether the summons issued by the Investigating Officer invoking Section 91 of the Cr.P.C., directing the petitioner to furnish information involving confidential transaction details/full account credentials of registered phonepe users/merchants for the purpose of freezing of the transactions of a particular registered user without complete investigation is tenable or otherwise. The issuance of the said notice under Section 91 of the Cr.P.C. has driven the petitioner to this Court in the subject petition.

4. Heard Sri Nitin Ramesh, learned counsel appearing for the petitioner and Sri Mohammed Jaffar Shah, learned Additional Government Advocate for the respondents.

5. The learned counsel Sri Nitin Ramesh would vehemently contend that the petitioner is an intermediary under Section 79 of the IT Act. The owner of the entire UPI platform is National Payments Corporation of India. Neither the petitioner nor its employees are accused in the crime. The petitioner was acting only as a system provider in the UPI payment system. The petitioner is governed under the Payment and Settlement Systems Act, 2007. He has no role to play in any of the transactions leading to filing of the FIR. The Bankers Books Evidence Act, 1891 which is made applicable to the Payment and Settlement Systems Act, 2007 clearly bars divergence of confidential information of the customers. The learned counsel would further submit that any document or information can be produced only after an order of the Court and not directly summoning the same by the Investigating Officer, invoking power under Section 91 of the Cr.P.C. It is his submission that the provisions of the Bankers Book Evidence Act would completely become applicable to the Payment and Settlement Systems Act and Section 91(3) carves out an exception to the application of the provisions of the Bankers Books Evidence Act which is a special enactment and, therefore, would prevail over general law. The power under Section 91 of the Cr.P.C., is restricted and subject to the provisions of other enactments. The enactments have laid down detailed procedure for inspection of books or fetching information by an order of the Court. In all, he would seek a declaration that the notice is contrary to law and unless the Court directs, no Investigating Officer can summon documents under Section 91 of the Cr.P.C.

6. Per-contra, the respondent/State takes this Court through the IT Act to contend that in the day of large number of cyber crimes today, the Pol