An Incomplete Charge-Sheet in a Mule-Account Fraud
A cyber-fraud case is registered on 2 January at a UP police station under Sections 318(4) and 61(2) BNS after Rs 27.6 lakh was transferred out of a cooperative society's account through fourteen mule accounts. The accused, the society's accountant, is arrested on 9 February and remains in judicial custody. The investigating officer files a charge-sheet on 7 April, the 58th day after arrest. Annexed are screenshots of WhatsApp messages printed by the IO from the complainant's phone and bank statements from three banks downloaded from net banking; none carries a certificate from the bank's nodal officer. The report records that the FSL result on the seized mobile and the money-trail analysis are 'awaited'. The IO has dropped one co-accused, a bank employee, with the single line 'no evidence found'. The witness list omits the society's auditor, whose statement under Section 180 BNSS was recorded. The Magistrate takes cognizance on 12 April and issues process. The accused applies for discharge, arguing that the charge-sheet is incomplete and the electronic evidence inadmissible.
1. Can the Magistrate take cognizance on an admittedly incomplete charge-sheet? What is the correct course for the court and for the IO when the FSL and money-trail reports arrive later?
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Cognizance is of the offence, not of a finished investigation. Section 193 BNSS requires the officer to forward a report together with the documents relied on, and Section 210 BNSS empowers the Magistrate to take cognizance on that report. The Magistrate examines whether the material discloses a prima facie case; he does not audit the quality or completeness of the investigation, and he cannot compel further investigation. The settled position (CBI v. R.S. Pai) is that a charge-sheet filed while investigation is still in progress can support cognizance. The missing FSL result and money-trail analysis therefore do not invalidate the order of 12 April.
What the IO must do. Section 193(8) BNSS preserves the right of further investigation. The IO should complete the money trail and the FSL work and file a supplementary report; the omission of the bank certificates and the screenshots can be cured now, because the court considers all material then on record at the stage of framing charge.
Default bail. The charge-sheet was filed on the 58th day, inside the sixty-day period, so no right to default bail accrued. Once a report is filed, a continuing investigation does not revive that right.
Practical order. Take the report on record, direct the IO to file the supplementary report within sixty days, and list the case for framing of charge only after that report, or after the prosecution records that it will file none.
2. Examine the admissibility of the WhatsApp screenshots and the uncertified bank statements, and state what you would do as the prosecution officer.
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Screenshots. A printout taken from the complainant's phone is an electronic record under the Bharatiya Sakshya Adhiniyam, 2023. Section 63 requires a certificate identifying the device, the person in charge of it and the hash value, and the certificate must accompany the record. Anvar P.V. v. P.K. Basheer and Arjun Panditrao Khotkar v. Kailash Kushanrao Gorantyal settle that the certificate is mandatory; Arjun Panditrao also holds that it may be produced at any stage before the trial concludes and that the court may summon the person. The screenshots are therefore not dead, only defective until the IO obtains a certificate from the complainant and, better still, seizes the handset and sends it for extraction.
Bank statements. A net-banking download is an electronic record generated by the bank's system and needs a Section 63(4) certificate from the bank's authorised officer describing the system and the manner of download. The safer route, which a prosecution officer should insist on, is a certified statement under the Bankers' Books Evidence Act, 1891, proved through the branch officer; that route avoids the certification problem and produces a witness who can speak to the entries.
Consequence. Without one route or the other, the money trail is unproved and the case reduces to the complainant's word. The defect is curable, so move the court for a direction to the IO before the charge stage rather than defend an indefensible record.
3. The IO has dropped the bank employee with a one-line reason and omitted the auditor from the witness list. What is your advice as prosecution officer, and at what stage can the court proceed against the dropped accused?
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Dropping a co-accused. An investigating officer has no power to discharge anyone. He may place the material and state that no evidence was found against the bank employee, and the court decides. A one-line reason is not a reason. Call for the case diary on that accused, satisfy yourself whether the account-opening forms, the KYC record and the internal transfer approvals were examined, and if the omission looks like a colourable exercise, say so in writing to the court with the material attached.
Witness omitted. The list of witnesses is not a closed list. The prosecution may examine a witness not cited, with the leave of the court, and may file an additional list. The auditor's statement goes to the society's internal control and to the quantum, so file a supplementary list and cite him; if the IO resists, have the reason recorded in the case diary.
Proceeding against the dropped accused. If the evidence at trial discloses the bank employee's role, the court may summon him as an additional accused and proceed against him. The power is exercised sparingly, on material that amounts to more than suspicion, and ordinarily before the trial concludes; the window is the trial court, not the appellate stage.