THE HONOURABLE SRI JUSTICE E.V.VENUGOPAL

ORDER:

This petition is filed under Section 482 of Criminal Procedure Code (for short ‘Cr.P.C) to quash the proceedings in C.C No.3039 of 2021, pending on the file of the learned XI Additional Chief Metropolitan Magistrate, Secunderabad (herein after referred as “the trial Court”) against the petitioner-

accused.

2. Heard Mr. Pradyumna Kumar Reddy, learned Senior Counsel representing Mr.T.Anirudh Reddy, learned counsel for the petitioner, Mr. Thomas Lloyd, learned counsel for respondent No.1 and Mr. E.Ganesh, learned Assistant Public Prosecutor appearing for the respondent No.2 – State.

3. The brief facts of the case are that on 31.12.2020 at 15.00 hours the de-facto complainant-LW.1 lodged a complaint against the petitioner wherein she stated that her father Mr.Sidheswar Upadhyaya’s property and other assets are with her younger brother Sujith Kumar Upadhyaya, who is also known as SKU in the family. Further, the complainant stated that the inheritance property and company share which should have been given to the daughters is not given to her by her brother. Many discussions have taken place, but he did not give her share. On 26.11.2016 she sent a notice through an advocate to come and solve the issue in the presence of family elders, but he did not reply to the notice. Since then he made several calls from different numbers and started threatening her. On 16.12.2020 when she was at her residence, she received a whatsapp message from 9749355844 by name Barkathula to her number 9866249934 at 11.00 hours. Then she started receiving many messages which were related to black magic, she immediately blocked the number. As she felt the number to be known, she checked the same in truecaller and found the name as SKU which is short cut of his younger brother Sujith Kumar Upadhyaya. Thereafter, she verified the number with her relatives and she came to know that it was her younger brother, who personated himself to be Barkathula. He has threatened and abused her in filthy language. Therefore, the petitioner committed offences under Sections 419, 385, 506 and 509 of IPC, 66-A of Information Technology Act, 2000.

Thereafter charge sheet has been filed against the petitioner.

4. Sri Pradyumna Kumar Reddy, learned Senior Counsel would submit that from a bare perusal of the charge sheet, it can be noticed that except the complainant-LW.1 and her husband-LW.2, no other witnesses have been examined and no scene of offence has been drawn by the respondent police and the panch witness - Satyanarayana Kumar Singh, and nothing has been brought on record by the respondent police upon the facts and allegations made against the petitioner, no other evidence has been collected by the respondent police.

5. It is further submitted that the charge sheet was laid on the file of the learned trial Court vide CC No.3039 of 2021 on 06.04.2021, arising out of FIR No.236 of 2020, dated 31.12.2020. He would further strongly contend that it is also necessary to examine the call records and messages transferred between the de-facto complainant and the petitioner and also the ownership of the telephone numbers, in between the said messages have been conversed, except that allegations made against the petitioner, there are no other materials in the form of hard copies in her statement under Section 161 Cr.P.C, which was recorded by LW.5. The statement of independent witness - LW.2-Mr.Rakesh Mishra was also recorded. It is further submitted that it is the duty on the part of the respondent police that while conducting investigation to obtain call records pertaining to the de-facto complainant as well as the petitioner. As per Section 65(B)(4) of the Indian Evidence Act, a certificate is mandatory for the admissibility of such electronic records in Court, particularly when prosecuting the petitioner under Section 66-A of the Information Technology Act. In the absence of such a certificate, the mere assumption of an offense under Se