Onyeka Solomon Wisdom Simon v. State of U.P. and another) arising out of Case Crime No

Hon'ble Ms. Nand Prabha Shukla,J.

1. Heard Sri Zeeshan Khan, learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. The present application under Section 389(2) Cr.P.C. has been filed to set aside the order dated 07.06.2024 passed by Additional District and Sessions Judge, Court No. 3, Aligarh in Bail Application No.6-B (related to Criminal Appeal No. 65/2024) (Onyeka Solomon Wisdom Simon Vs. State of U.P. and another) arising out of Case Crime No. 14 of 2021, under Sections 419, 420, 120-B IPC and Sections 66-C and 66-D of I.T. Act, Police Station-Cyber Crime, Aligarh.

3. The factual aspect of the matter is as follows:- On 24.07.2021, an FIR was registered against unknown persons under Sections 419, 420 IPC and Section 66-D of the I.T. Act, Police Station-Cyber Crime, District-Aligarh alleging that the opposite party No. 2 Adeeba Khan created a profile on a matrimonial website Shaadi.com where she had received proposal from an individual using ID-SH24934186 associated with mobile No. +1 (651) 252-1772. The complainant remained in contact with the person linked to this ID for approximately 20 days subsequently she received a call from mobile No. +91 9394094651 informing her that expensive gifts had been sent to her and she needed to pay a customs' penalty. The informant transferred Rs.35,000/-, Rs. 1.50 lakh and other similar amount on multiple occasions ultimately transferring Rs. 4,83,000/-

4. After the investigation, the applicant was charge sheeted and Section 120-B IPC and Section 66-C of the IT Act was also invoked and the trial proceeded.

5. After the trial was concluded, the learned Additional Chief Judicial Magistrate, Court No. 4, Aligarh vide its order dated 30.03.2024 convicted the applicant Onyeka Solomon Wisdom Simon to undergo the following sentence:- i. For the offence under Section 419 IPC shall undergo rigorous imprisonment of 03 years and pay fine of Rs. 2,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for six months. ii. For the offence under Section 420 IPC shall undergo rigorous imprisonment of 07 years and pay fine of Rs. 4,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for six months. iii. For the offence under Section 120B IPC shall undergo rigorous imprisonment of 07 years and pay fine of Rs. 2,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for six months. iv. For the offence under Section 66C IT Act shall undergo rigorous imprisonment of 03 years and pay fine of Rs.1,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for one month. v. For the offence under Section 66D IT Act shall undergo rigorous imprisonment of 03 years and pay fine of Rs. 1,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for one month.

6. All the sentences shall run concurrently.

7. Against the said order of conviction, the applicant preferred a Criminal Appeal No. 65 of 2024 before the Additional District and Sessions Judge, Court No. 3, Aligarh wherein the Bail Application No. 6-B of the applicant was rejected vide imugned order dated 07.06.2024.

8. The main submission of learned counsel for the applicant is that the applicant is a foreign national, resident of Nigeria. The applicant is not named in the FIR and the prosecution has failed to prove its case. The mobile number used for making conversation with the complainant is the same number which is recovered by the Cyber Crime Police in Hyderabad and not from the applicant. The monetary transaction does not prove money being transacted in the applicant's account. He has never indulged in any illegal activities in India and has no criminal history nor has been prosecuted in any criminal case. The applicant was on bail during trial. The sentence passed against the applicant is without jurisdiction. It has also been asserted that according to the custody certificate issued by Jail Superintendent, District Jail Aligarh dated 21.10.2024. the applicant has remained in custody for more than two years and four months.

9. Per contra, learned A.G.A. for the State has vehemently opposed the prayer for bail in pending criminal appeal and has submitted that the applicant is a habitual Cyber Criminal and has a criminal history of four cases. The details of the criminal history are as follows:-

1. FIR No. 2347 of 2020, Police Station-Cyber Crime Hyderabad City, Telangana.

2. FIR No. 1411 of 2020, Police Station-Cyber Crime Hyderabad City, Telangana.

3. FIR No. 949 of 2020 dated 27.05.2020, Police Station-Cyber Crime Hyderabad City, Telangana.

4. FIR No. 14 of 2021, under Sections 419, 420, 120B IPC, Police Station-Cyber Crime, Aligarh, Uttar Pradesh.

10. It has further been submitted that the applicant being a foreign national had been operating behind the curtains and purporting himself as one Azad Khan of Lucknow has cheated the complainant. The complainant and other witnesses in their testimony have deposed that the applicant by using his communication device had cheated the complainant and committed the offence under Sections 419, 420, 120B IPC and Sections 66-C and 66-D of the IT Act. The complainant in her testimony deposed that gang member of Onyeka Solomon used to threaten her to take the case back and used to send threats and obscene contents on her mobile phone. Several other persons are also the victim of cyber crime wherein the applicant has purported himself as Azad Khan and deceived them through impersonation.

11. Upon hearing learned counsel for the parties and from the perusal of records, it transpires that the applicant Onyeka Solomon Wisdom Simon had cheated the complainant by impersonation, dishonestly and fraudulently got the complainant delivered the money through cyber fraud using the communication device causing a loss of Rs.4,83,000/-. The applicant is a habitual Cyber Criminal and several cases are registered against him at Hyderabad and Telangana. The applicant originally belongs to Nigeria and there is every possibility of his absconding as soon as he is released on bail. The applicant and his gang are also an accused in FIR No. 949 of 2020 in which the investigation is still pending.

12. Considering the aforesaid facts and circumstances, this Court does not find any merit in the matter, accordingly the bail application of the applicant stands dismissed. Order Date :- 4.3.2025 Shivani

Hon'ble Ms. Nand Prabha Shukla,J.

1. Heard Sri Zeeshan Khan, learned counsel for the applicant, learned A.G.A. for the State and perused the record.

2. The present application under Section 389(2) Cr.P.C. has been filed to set aside the order dated 07.06.2024 passed by Additional District and Sessions Judge, Court No. 3, Aligarh in Bail Application No.6-B (related to Criminal Appeal No. 65/2024) (Onyeka Solomon Wisdom Simon Vs. State of U.P. and another) arising out of Case Crime No. 14 of 2021, under Sections 419, 420, 120-B IPC and Sections 66-C and 66-D of I.T. Act, Police Station-Cyber Crime, Aligarh.

3. The factual aspect of the matter is as follows:- On 24.07.2021, an FIR was registered against unknown persons under Sections 419, 420 IPC and Section 66-D of the I.T. Act, Police Station-Cyber Crime, District-Aligarh alleging that the opposite party No. 2 Adeeba Khan created a profile on a matrimonial website Shaadi.com where she had received proposal from an individual using ID-SH24934186 associated with mobile No. +1 (651) 252-1772. The complainant remained in contact with the person linked to this ID for approximately 20 days subsequently she received a call from mobile No. +91 9394094651 informing her that expensive gifts had been sent to her and she needed to pay a customs' penalty. The informant transferred Rs.35,000/-, Rs. 1.50 lakh and other similar amount on multiple occasions ultimately transferring Rs. 4,83,000/-

4. After the investigation, the applicant was charge sheeted and Section 120-B IPC and Section 66-C of the IT Act was also invoked and the trial proceeded.

5. After the trial was concluded, the learned Additional Chief Judicial Magistrate, Court No. 4, Aligarh vide its order dated 30.03.2024 convicted the applicant Onyeka Solomon Wisdom Simon to undergo the following sentence:- i. For the offence under Section 419 IPC shall undergo rigorous imprisonment of 03 years and pay fine of Rs. 2,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for six months. ii. For the offence under Section 420 IPC shall undergo rigorous imprisonment of 07 years and pay fine of Rs. 4,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for six months. iii. For the offence under Section 120B IPC shall undergo rigorous imprisonment of 07 years and pay fine of Rs. 2,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for six months. iv. For the offence under Section 66C IT Act shall undergo rigorous imprisonment of 03 years and pay fine of Rs.1,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for one month. v. For the offence under Section 66D IT Act shall undergo rigorous imprisonment of 03 years and pay fine of Rs. 1,00,000/-, in default to pay the fine he shall further undergo simple imprisonment for one month.

6. All the sentences shall run concurrently.

7. Against the said order of conviction, the applicant preferred a Criminal Appeal No. 65 of 2024 before the Additional District and Sessions Judge, Court No. 3, Aligarh wherein the Bail Application No. 6-B of the applicant was rejected vide imugned order dated 07.06.2024.

8. The main submission of learned counsel for the applicant is that the applicant is a foreign national, resident of Nigeria. The applicant is not named in the FIR and the prosecution has failed to prove its case. The mobile number used for making conversation with the complainant is the same number which is recovered by the Cyber Crime Police in Hyderabad and not from the applicant. The monetary transaction does not prove money being transacted in the applicant's account. He has never indulged in any illegal activities in India and has no criminal history nor has been prosecuted in any criminal case. The applicant was on bail during trial. The sentence passed against the applicant is without jurisdiction. It has also been asserted that according to the custody certificate issued by Jail Superintendent, District Jail Aligarh dated 21.10.2024. the applicant has remained in custody for more than two years and four months.

9. Per contra, learned A.G.A. for the State has vehemently opposed the prayer for bail in pending criminal appeal and has submitted that the applicant is a habitual Cyber Criminal and has a criminal history of four cases. The details of the criminal history are as follows:-

1. FIR No. 2347 of 2020, Police Station-Cyber Crime Hyderabad City, Telangana.

2. FIR No. 1411 of 2020, Police Station-Cyber Crime Hyderabad City, Telangana.

3. FIR No. 949 of 2020 dated 27.05.2020, Police Station-Cyber Crime Hyderabad City, Telangana.

4. FIR No. 14 of 2021, under Sections 419, 420, 120B IPC, Police Station-Cyber Crime, Aligarh, Uttar Pradesh.

10. It has further been submitted that the applicant being a foreign national had been operating behind the curtains and purporting himself as one Azad Khan of Lucknow has cheated the complainant. The complainant and other witnesses in their testimony have deposed that the applicant by using his communication device had cheated the complainant and committed the offence under Sections 419, 420, 120B IPC and Sections 66-C and 66-D of the IT Act. The complainant in her testimony deposed that gang member of Onyeka Solomon used to threaten her to take the case back and used to send threats and obscene contents on her mobile phone. Several other persons are also the victim of cyber crime wherein the applicant has purported himself as Azad Khan and deceived them through impersonation.

11. Upon hearing learned counsel for the parties and from the perusal of records, it transpires that the applicant Onyeka Solomon Wisdom Simon had cheated the complainant by impersonation, dishonestly and fraudulently got the complainant delivered the money through cyber fraud using the communication device causing a loss of Rs.4,83,000/-. The applicant is a habitual Cyber Criminal and several cases are registered against him at Hyderabad and Telangana. The applicant originally belongs to Nigeria and there is every possibility of his absconding as soon as he is released on bail. The applicant and his gang are also an accused in FIR No. 949 of 2020 in which the investigation is still pending.

12. Considering the aforesaid facts and circumstances, this Court does not find any merit in the matter, accordingly the bail application of the applicant stands dismissed. Order Date :- 4.3.2025 Shivani