Recently, I came across an article on the web discussing how a criminal conviction or trial proceedings can produce evidence for a civil compensation. (Related Article). This was regarding a proceeding in Canada. The points raised here appeared to be relevant in India in Cyber Crime cases and hence the following comments can be made.
In many of the Cyber Crime Cases we come across a Civil and Criminal dispute being tried in different fora simultaneously. For example, the Police may pursue a bank fraud case while the victim may invoke Adjudication under ITA 2008.
Normally, a criminal case takes a longer time and a stronger evidence (Beyond Reasonable Doubt) to result in conviction. But a civil proceeding under the special provisions of adjudication and Cyber Appellate Tribunal (CAT) can be completed much quicker. Also these judicial process in adjudication being of the enquiry commission type, it is more victim friendly.
Though victim compensation can also be provided by a criminal court, traditionally the criminal courts in India are reluctant to go deep into evaluation of financial compensation which may involve opportunity loss or gain, interest and litigation expenses etc. (There could be exceptions such as the recent prevention of corruption case of J Jayalalitha where the session’s judge did take the trouble to make proper estimate of the wrongful gain the accused might have made). Also the criminal cases are pursued by the state and the public prosecutors and the victim’s interest may not always be a priority.
Hence where a civil remedy is separately available, the victim always prefers to explore such alternate remedies. This is mostly true in Cyber Crime cases.
It may be recalled that in the land mark Umashankar Vs ICICI Bank adjudication case, the adjudicator’s verdict was that the Bank was liable for paying compensation to the victim for the fraudulent loss suffered by him. At the same time Tamil Nadu police was (and is) pursuing the criminal case against the identified ultimate fraudster. An issue was raised by the undersigned with the Tamil Nadu police that it should pursue the case of criminal negligence and complicity by ICICI Bank and its officials in the light of the positive findings of the Adjudicator.
However, TN police hesitated and did not proceeded even to conduct a proper enquiry and take up investigation against any of the officials of the Bank.
At least in future, Police should take advantage of the availability of an earlier civil compensation verdict where it is relevant.
Of course this argument would not apply to Karnataka where the IT Secretary acting as an adjudicator has actually jeopardized the system of criminal justice also by holding in effect that Section 66 of ITA 2000/8 cannot be invoked by a Corporate victim nor any person can invoke Section 66 on a Company. This can also extend to many other sections of ITA 2000/8 and make the act completely redundant in the State.
Unfortunately in the absence of an operating CAT, the decision of the Adjudicator remains a precedent since more than 2 years. It is disappointing that the judicial authorities such as the Karnataka High Court and the Administrative bodies such as the Government have not yet observed the highly undesirable criminal justice system that is now prevailing in Karnataka in the domain of Cyber Crimes on account of this decision. As otherwise they would have taken proactive steps to correct the same.
Karnataka Government now has on its hands the opinion of the Law department as well as the Cyber Crime Police that the subject decision of the Adjudicator is not correct but is yet to take a proactive action to correct the situation. Mr Siddaramaiah the honourable Chief Minister of the State is himself a law graduate and can personally appreciate the correctness or otherwise of the decision without any expert opinion but unfortunately the matter has not yet come to his attention.
The Karnataka Judiciary which covered itself with glory in the J Jayalalitha case would do well to bestow its attention on what Naavi.org has been stating time and again that in the absence of a corrective action, the said decision has renedered Karnataka a “Cyber Crime Haven”.
Let this Diwali shed light on the situation and some positive action by the Karnataka Government and or Karnataka High Court.