Karnataka High Court
Alex Mendrad Mseke vs State Of Karnataka on 8 June, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JUNE, 2020
BEFORE
THE HON'BLE MR. JUSTICE N.K. SUDHINDRARAO
CRIMINAL PETITION No.2147/2020
C/W
CRIMINAL PETITION No.2151/2020
IN CRL.P No.2147/2020:
BETWEEN:
ALEX MENDRAD MSEKE
S/O MENDRAD RICHARD
AGED ABOUT 24 YEARS
R/AT:FLAT No.8,451/1
THIRUMENAHALLI MAIN ROAD
YELAHANKA
BANGALORE - 560 085. ..PETITIONER
(BY SRI D MOHAN KUMAR FOR
SRI M KRISHNE GOWDA, ADVOCATE)
AND:
STATE OF KARNATAKA
STATE BY KUDUR P S
REPTD. BY HIGH COURT GOVT. PLEADER
HIGH COURT OF KARNATAKA
BANGALORE - 560 001. ..RESPONDENT
(BY SRI DIVAKAR MADDUR, HCGP)
2
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.No.300/2019 REGISTERED BY KUDUR POLICE
STATION, RAMANAGARA FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 379 AND 420 OF IPC AND SECTIONS
66(C) AND 66(D) OF INFORMATION TECHNOLOGY ACT.
IN CRL.P No.2151/2020:
BETWEEN:
GEORGE GENES ASSEY
S/O GENES G ASSEY
AGED ABOUT 24 YEARS
R/AT:#45, 3RD FLOOR,
5TH CROSS, OPP. TO URDU SCHOOL
RAJYOTHSAVANAGARA, K S LAYOUT
BANGALORE - 560 060. ..PETITIONER
(BY SRI D MOHAN KUMAR, FOR
SRI M KRISHNE GOWDA, ADVOCATE)
AND:
STATE OF KARNATAKA
STATE BY KUDUR P.S
REPTD. BY HIGH COURT GOVT. PLEADER
HIGH COURT OF KARNATAKA
BANGALORE - 560 001. ..RESPONDENT
(BY SRI DIVAKAR MADDUR, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. BY THE ADVOCATE FOR THE PETITIONER
PRAYING TO ENLARGE THE PETITIONER ON BAIL IN
CR.No.300/2019 REGISTERED BY KUDUR POLICE
STATION, RAMANAGARA FOR THE OFFENCE PUNISHABLE
UNDER SECTIONS 66(C) AND 66(D) OF INFORMATION
3
TECHNOLOGY ACT AND UNDER SECTIONS 379 AND 420
OF IPC.
THESE CRIMINAL PETITIONS COMING ON FOR
ORDERS THIS DAY, THE COURT THROUGH VIDEO
CONFERENCE AT BENGALURU MADE THE FOLLOWING:
ORDER
This matter is taken up through Video Conference today.
2. Learned counsel Sri.D.Mohan Kumar for petitioners and Sri.Divakar Maddur, learned HCGP for respondent are present.
3. The petitions are filed under Section 439 of Cr.P.C. wherein the petitioners seek grant of bail in Crime No.300/2019 of respondent-police for the offences punishable under sections 66(C) and 66(D) of Information Technology Act, 2008 and Sections 379 and 420 of IPC. Since both the petitions related to the same criminal case registered by respondent- 4 police, they are taken up together for common disposal.
4. The petitioners are stated to be in Judicial Custody from 19.02.2020.
5. The date of complaint is 01.11.2019.
6. Previously, the petitioners had made application before the learned Principal District and Sessions Judge, Ramanagara in Crl.Mis.No.157/2020 under Section 439 to Cr.P.C. that came to be dismissed on 12.03.2020.
7. Copy of the petitions is served on learned HCGP for respondent.
8. Heard.
9. The substance of the criminal case is as under: 5
The complaint came to be registered on 01.11.2019 at 15 hours before the respondent-police in Crime No.300/2019 for the offences punishable under Sections 66(C) and 66(D) of Information Technology Act, 2008 and Sections 379 and 420 of IPC against unknown persons.
10. It is stated by the complainant Shivakumar K.N., S/o Narasimhaiah of Kodihalli Colony, Kudur Hobli, Magadi Taluk, Ramanagara, that on 31.10.2019 at about 5.30 P.M. the complainant received a message to his Mobile Phone No.8217044141 thereby he was intimated that his bank account in savings bank No.3244101011615 was debited by an amount of Rs.10,000/-. Similarly he received messages totaling in a span of over five minutes, thereby intimated that an amount of Rs.10,000/- was withdrawn four times totaling Rs.40,000/- and the same was debited to the 6 savings bank account stated by him. As the bank was not functioning due to holiday on the date of incident the complainant contacted customer care centre and informed about the incident and instructed to block his debit card connecting said bank account.
11. The complainant claimed despite having a debit card with him, it was later revealed that the said amount was withdrawn from Canara Bank ATM at Maruthinagar, Bangalore. It was revealed during the investigation that the amount of Rs.40,000/- was illegally withdrawn by cheating complainant and by misusing technology for the purpose of cheating in order to make wrongful gain.
12. Petitioners were apprehended on 19.02.2020. They moved bail application before the learned Principal District and Sessions Judge, Ramanagara in 7 Crl.Mis.No.157/2020. After hearing, the learned District and Sessions Judge, Ramanagara, rejected Crl. Mis.No.157/2020 on 12.03.2020.
13. In the circumstances both the petitioners approached this court seeking relief.
14. Learned counsel for the petitioners would submit that the accused persons are students studying B- Pharma. Learned counsel would further submit that the petitioners do not have criminal background they are innocent of the offence alleged against them. The offence is not punishable with imprisonment beyond the period of seven years and they are entitled for bail.
15. Learned Government Pleader for respondent would submit that nearly 27 items which are 8 incriminating were seized from the side of petitioners which included skimming device, mobile phones, Sim cards, ATM Sim card, laptop and equipments and illegal act of petitioners were confirmed. Even the call details also confirmed the involvement of the petitioners committing crime. They manipulated and forged and also gave false declaration regarding their citizenship and procured false Aadhar card. Further the petitioners are stated to be citizens of Tanzania but had suppressed the said fact.
16. It is necessary to mention that there are offences which are committed under extreme circumstances under heat and grave provocation with private defence which includes heinous offence of murder, attempt to murder, causing grievous hurt in many cases. The said offences may have been committed under grave provocation and in a spur of 9 moment or in exercising the right of private defence and property or persons. But without generalizing the present case, it is seen very often the criminal cases including forgery, cheating and concocting documents, cyber offence and related never fall under the said category wherein the offender can raise grave provocation or spur of moment etc. The petitioners are reported to be nationals of a different nation - Tanzania and came down to India for the purpose of education and serious allegation is that they have misused the technology, abused the operation of electronic devices and have gone to the extent of playing extreme fraud in order to cheat the complainant of Rs.40,000/- through withdrawals from ATM of Canara Bank, Maruthinagar, Bangalore. The incidents like this may distort the confidence and the trust in the very existence of banking operation and leave the victims in a state of turmoil and restless 10 situation because of no fault of them. The offence like the above definitely involve deep preparation and abuse of technology and also shattering the security of innocent customers of the bank and petitioners have obtained Aadhar card by making false representations.
17. Considering the nature of the offences and circumstances of the commission, the loss related to the complainant and modus operandi, the stay of the petitioners in judicial custody, completion of investigation, submission of final report are totally insignificant to consider the grant of bail to the petitioners. No doubt the petitioners are entitled for fair trial. It is necessary to consider the submission of the prosecution that there are apprehensions of involvement of petitioners in many similar cases. 11
18. In the above circumstances, it is neither just nor proper to grant the relief of bail to petitioners considering their stay in the judicial custody so far. However, trial court may be directed to dispose of the matter expeditiously.
Trial Court is directed to dispose of the matter expeditiously, however within an outer limit of one year after the lifting of lock down.
Both the petitions are dismissed.
Sd/-
JUDGE SBN