Gujarat High Court
Sandipkumar Sunderbhai Thakur vs State Of Gujarat on 23 February, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
R/CR.MA/4624/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION NO. 4624 of 2018
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SANDIPKUMAR SUNDERBHAI THAKUR
Versus
STATE OF GUJARAT
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Appearance:
MR SAMIR AFZAL KHAN for the PETITIONER(s) No. 1
MR. BHARGAV K MEHTA for the PETITIONER(s) No. 1
MS MOXA THAKKAR, APP for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 23/02/2018
ORAL ORDER
1. By this application under Section439 of the Code of Criminal Procedure, 1973, the applicant - original accused no.2 prays for regular bail in connection with an F.I.R. registered with the Bopal Police Station, Ahmedabad Rural, vide IC.R.No.92 of 2017 for the offence punishable under sections420, 465, 467, 468, 471 and 120B of the I.P.C. and Sections66(a) (b), (c) and 66(D) of the Information Technology Act.
2. The F.I.R. came to be lodged by one Brijesh Ashwinkumar Modi. The F.I.R. is extracted hereunder: My name is Brijesh Ashwinkumar Modi, age 30 years, occupation - service, resident of Bopal, E101, Silvar Stroke Apartment, Behind Government Tubewell, Ta. Dashkroi, Dist. Ahmedabad, mobile no. 8200589613, 9998824191.
Being asked personally, I dictate that I reside at the above mentioned address since last about five years and I earn my livelihood by doing private service as an accountant in Tripada Health Care Pvt. Ltd., Drivein Road, Ahmedabad.
A joint savings account of me and my wife Devaliben is maintained in Drivein Road Branch of SBI in Ahmedabad. The account number is Page 1 of 6 R/CR.MA/4624/2018 ORDER 20114349840. I even hold ATM card of this account for transaction of money. I withdraw money using this card. Though this ATM card was with me, Rs.19,500/ was debited from my account early in the morning on last 19/08/2017. Moreover, bank charges of Rs. 23.60/ was added therein and thus total Rs.19523.60/ was withdrawn. I received total three messages for this on my mobile no.9998824191 between 6.30 to 7.30 hours in the morning. On seeing the messages, it was found that total three withdrawal transactions of Rs. 10,000/, Rs. 9,000/ and Rs. 500/ were carried out between 4.00 to 6.30 hours. As I searched for my ATM at this time, it was found that the ATM card was in my wallet. Therefore, I went to my Drivein Road Branch of SBI and the Manager over there informed me to get my ATM blocked and lodge complaint in the police station. Therefore, I got my ATM card blocked and thereafter, I went to Vastrapur Police Station and submitted application in this regard. As I got entry made in my passbook, I found that the above mentioned money was withdrawn from ATM of Ghatlodia Branch of ICICI Bank. Therefore, I submitted application in the said branch on 21/08/17. Thereafter, as I demanded CCTV footage from both the banks, I was told that I will not get the footage; they will provide the same only if the police demands. Thereafter, Drivein Road Branch of SBI, Ahmedabad informed me in writing that ICICI Bank is not ready to provide CCTV footage to them and that they will give me the footage as and when they provide the same. Thereafter, in order to get the CCTV footage, I submitted RTI applications at various places. Thereafter, forms for ATM transaction disputes were filled in my branch on 13/09/17 and 19/09/17. Thereafter, phone call was received on mobile numbers of my wife and that of mine on 05/10/17 from Cyber Cell, Dafnala, Shahibag, Ahmedabad and it was informed that 'as money has been withdrawn from your account, come over here to meet'. Therefore, when I visited the place, I was informed that fact regarding money withdrawn from your account has been found from the persons of gang detained by us. Therefore, register complaint at the place where you are residing. Therefore, as I read in Gujarat Samachar newspaper dated 04/10/17 that a gang has been captured comprising the persons named below who were withdrawing money by forging duplicate ATM cards, I have come here to register complaint against them. Therefore, as Rs, 19,500/ for total three transactions carried out through ATM of Ghatlodiya Branch of ICICI Bank on 19/08/2017 between 04.00 to 06.30 hours in the morning and charge of Rs. 23.60/ was deducted from joint savings account no.201114349840 belonging to me and my wife Devaliben maintained in Drivein Road Branch of SBI, Ahmedabad and as this money was withdrawn from my account by using duplicate ATM card by (1) Pruthvivallabh Mathuria, resident of Raghunath Park, near Vadaj Railway Crossing, (2) Sandipkumar Thakur, resident of Gokuldham Society, IOC Road, Chandkheda, (3) Akash Shrimali, resident of Shahpur, Halimni Khadki, Bukhara Pol, Page 2 of 6 R/CR.MA/4624/2018 ORDER (4) Shivam Vaghela, Krupasagar Society, Chandkheda and (5) Vinay Bhavsar, resident of Shahpur, Halimni Khadki, Kotadi Pol, this is my lawful complaint to take legal action against them. My witnesses are those found during investigation.
This much of my complaint is true and correct as dictated by me.
Before me, sd/ illegible.
Before me S/d (in English) Police Station Officer Bopal Police Station,
3. The Court below rejected the regular bail application observing as under: (6) Considering aforesaid bail application and oral arguments advanced for the State, applicant/accused is alleged to have committed offences u/s 420, 465, 467, 468, 471, 120(B) of the IPC and u/s 66(a)(a)b, c, 66D of the I.T. Act. Upon perusal of police investigation papers and facts of the complaint, applicant/accused and other accused persons forged A.T.M. card data and withdrew Rs.19,500/ thrice through A.T.M. card and thereby, they have committed offence. Upon perusal of police investigation papers, it appears that two accused persons Vinay and Shivam had been working at petrol pump. When customers approach to fill petrol by making payment through A.T.M. card, they used to scratch A.T.M. card in the device possessed and were secretly watching PIN number. In this manner, they used to collect data and PIN entered in the POS machine by the customer. Thereafter, they used to assign number to data and PIN collected malafidely. After reaching home, they used to attach the device, copy data of A.T.M. card from it, paste it into another software, scratch dummy card and upload the same. After the said number is copied into dummy card, they used to give the said card and PIN to the coaccused persons and they had been withdrawing money from different A.T.M.s in such manner. It clearly appears that present applicant/accused was also involved in the aforesaid conspiracy. In addition to this, names of accused persons are also appearing in the F.I.R. It is the submission of learned advocate for applicant/accused that they have been arrested on the basis of suspicion. The same is not required to be taken into consideration. Upon perusal of facts of the complaint and investigation papers, it appears that applicant/accused, being colluded with other accused persons, have committed offence by withdrawing the amount through dummy A.T.M. card. The offences alleged to have been committed by applicant/accused are grave offences. If Page 3 of 6 R/CR.MA/4624/2018 ORDER applicant/accused is released on bail, it is likely that his act of misappropriating money will be encouraged. Under such circumstances, as primafacie offence is found to have been committed by applicant/accused, it does not appear to be proper to release him on bail. Therefore, the following order is passed.
4. Being dissatisfied with the order passed by the Court below rejecting the regular bail application, the applicant is here before this Court.
5. The learned counsel appearing for the applicant submitted that his client is in the judicial custody since 12/10/2017. He submitted that the investigation is over and chargesheet has been filed. He further submitted that all the offences are magistrate triable. He also pointed out that one coaccused has been released on bail by a coordinate bench. It is also pointed out that arrest was effected in one particular F.I.R. and thereafter, by way of a transfer warrant, the applicantaccused came to be arrested in other cases. In such circumstances, it is prayed that the applicant be released on bail subject to terms and conditions.
6. This application has been vehemently opposed by the learned APP appearing for the State. The learned APP after taking instructions from the Investigating Officer, who is present in the court today with the papers of the investigation, submitted that the applicant is a habitual offender. He is involved in three other cases similar in nature. The learned APP gave a fair idea of the modus operandi being adopted by the applicant and the other coaccused with regard to creating a bogus ATM cumdebit card. It is explained to the Court that if a customer would visit any petrolpump for the purpose of filling up petrol and when time comes to make the payment, the customer would hand over his ATM cumdebit card and such card would be first inserted and swapped in a gadget. Thereby, the entire data of the ATMcumdebit card would get Page 4 of 6 R/CR.MA/4624/2018 ORDER transferred in the gadget. Thereafter, the ATMcumdebit card would be actually swapped for the purpose of making the payment for the purchase. The entire data, which gets fraudulently transferred into a particular device, is thereafter being used for the purpose of creating a bogus ATMcumdebit card. Such ATMcumdebit card thereafter is used fraudulently. The learned APP pointed out that this happened in three cases. The learned APP further pointed out that the entire racket has surfaced and a team has been operating in this manner. In such circumstances, it is prayed that this court may not exercise its discretion in favour of the applicant.
7. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether I should exercise my discretion in favour of the applicant herein.
8. I am not impressed by the submission of the learned counsel that one coaccused has been enlarged on bail and therefore, the applicant is entitled to bail. It appears that a coordinate bench of this Court thought fit to exercise its discretion in favour of one coaccused, but my view is that parity has no legal force and having regard to the nature of the allegations, I am not inclined to release the applicant on bail on the ground of parity.
9. Considering the modus operandi and the entire racket, I am not inclined to exercise my discretion in favour of the applicant. The applicant appears to be habitually indulging in this type of activities. The case is one of a large scale conspiracy. It will not be in the interest of the society to release such a person on bail. In such circumstances, this application fails and is hereby rejected. Rule is discharged.
Page 5 of 6R/CR.MA/4624/2018 ORDER
10. Since I am not inclined to release the applicant on bail and as chargesheet has been filed, the trial Court is directed to immediately proceed with the framing of the charge and start with the recording of the evidence and complete the trial within a period of three months from the date of the receipt of this order and report the disposal to this Court.
The trial Court shall make all possible endeavours to conduct the trial on daytoday basis. The Investigating Officer shall extend the full cooperation in expeditious disposal of the trial.
(J.B.PARDIWALA, J.) aruna Page 6 of 6