Bangalore District Court
The State Of Karnataka Through vs Unknown on 1 June, 2016
IN THE COURT OF XXIV ADDL. CHIEF
METROPOLITAN MAGISTRATE, BENGALURE
DATED THIS THE ....... DAY OF ....................2016
C.C. No.36986/2011
Present: SRI. CHINNANNAVAR R. S.
XXIV ADDL. C.M.M., BENGALURE.
COMPLAINANT : The state of Karnataka through
Yashawanthapura Police Station
(State by Sr. A.P.P.)
V/s.
ACCUSED :
C. Jagadish S/o.
Chandrappa, R/o.
Tirumalapura,
Vishwanathanahalli
Hobli, Holalkere Tq.,
Chitradurga.
(Reptd. by Sri. ......., Advocate)
DATE OF COMMENCEMENT
OF OFFENCE : 07.09.2010 to 26/09/2010
DATE OF ARREST
OF THE ACCUSED : Accused is on bail.
OFFENCE ALLEGED : U/s. 420 of IPC.
DATE OF COMMENCEMENT
OF EVIDENCE : 11.09.2012
DATE OF CLOSING OF
EVIDENCE : 06.04.2015
OPINION OF THE JUDGE : Found not guilty
(Chinnannavar R. S.)
XXIV A.C.M.M., BANGALORE.
2 CC.NO.36986/2011
-: J U D G M E N T :-
The PSI of Yashawanthapura Police Station has filed
charge sheet against accused for the offence punishable U/s.
420 of IPC.
2. The case of the prosecution in brief is as under:
It is alleged that, accused is account holder of account
No.64043260780 of SBM, K.R. Puram branch and in his account
he has balance of Rs.1,194/- as on 06/09/2010 and even though
he had knowledge of his account balance he has used his ATM
and drawn an amount of Rs.20,60,000/- between 07/09/2010 to
26/09/2010 through SBI ATM, KK Bhavan, Yashawanthapura and
thereby he has gained wrongful gain to himself and caused
wrongful loss to the State Bank of Mysore and mis-utilised his
ATM by taking disadvantage of technical problem in ATM and
thereby cheated the complainant and thereby committed an
offence punishable U/s. 420 of IPC.
3. The first information was filed by the branch manager of
State Bank of Mysore, K.R. Puram Branch, namely Nishani.A on
16/11/2010 at 12.30 p.m. On the basis of written complaint PI
registered in crime No.419/2010 for the offence U/s.420 of IPC
and sent FIR to the court. Later he visited the spot conducted
spot panchanama and handed over further investigation to
CW.10(PSI), who collected documents from SBI, KK Bhavan
Branch, arrested accused, recorded the voluntary statement,
3 CC.NO.36986/2011
seized an amount of Rs.1,75,000/- and one Indica Car, ATM Card
of accused by drawing seizure panchanama, got identified
accused through CW.1, collected documents and after completion
of investigation filed charge sheet against the accused for the
above said offence.
4. On perusing the charge sheet this court has taken
cognizance for the offence punishable U/s. 420 of IPC. During
crime stage accused was released on bail.
5. The copy of the charge sheet and other materials
has been supplied to the accused as required U/s. 207 of Cr.P.C.
6. After hearing both side the charge for the offence
punishable U/s. 420 of IPC was framed & read over to the
accused in the language known to him. He denied the charge and
claimed trial.
7. In order to prove the case the prosecution has got
examined PW.1 to 8 and got marked Ex.P.1 to 10.
8. The statement of the accused as required U/s. 313
Cr.P.C. has been recorded. Accused has denied the incriminating
evidence and not chosen to lead defence evidence.
9. I have heard the learned Sr. A.P.P. and learned
defense counsel.
10. The following point arises for my consideration:
4 CC.NO.36986/2011
1. Whether the prosecution proves beyond reasonable
doubt that, accused is account holder of account
No.64043260780 of SBM, K.R. Puram branch and in
his account he has balance of Rs.1,194/- as on
06/09/2010 and even though he had knowledge of his
account balance he has used his ATM and drawn an
amount of Rs.20,60,000/- between 07/09/2010 to
26/09/2010 through SBI ATM, KK Bhavan,
Yashawanthapura and thereby he has gained wrongful
gain himself and caused wrongful loss to the State
Bank of Mysore and mis-utilised his ATM by taking
disadvantage of technical problem in ATM and thereby
cheated the complainant and thereby committed an
offence punishable U/s. 420 of IPC?
2. What order ?
11. My answer to the above points is as under;
Point No.1 - In the Negative.
Point No.2 _ As per final order for the following;
REASONS
POINT NO.1:
12. Accused has denied the case of the prosecution, total
denial is his defence. The burden is upon the prosecution to
prove its case beyond reasonable doubt and in order to discharge
said burden it relied upon evidence of PW.1 to 8 and Ex.P.1 to
10. PW.1 is the complainant, Ex.P.1 is the complaint. Ex.P.2 is
5 CC.NO.36986/2011
account opening form of accused, Ex.P.3 is statement of account
of accused, Ex.P.4 is ATM transactions extract, Ex.P.5 is spot
mahazar. PW.2 and 3 are pancha to spot panchanama-Ex.P.5.
PW.4 is the branch manager of SBM who was serving in the bank
at the time of alleged incident. PW.5 is Head Constable and
PW.7 is the PC who secured the accused. PW.6 is the PSI who
conducted maximum part of investigation. PW.8 is the PI who
registered FIR and conducted spot panchanama.
13.The prosecution has mainly relied upon evidence of
complainant i.e. PW.1 and the branch manager i.e. PW.2. PW.1
specifically deposed that, accused was having balance of
Rs.1,194/-in his account but he has withdrawn Rs.20,60,000/-
through ATM and thereby misused his ATM card and thereby
cheated the Bank. PW.4 the then branch manager deposed that,
accused has misused the technical problem of ATM and caused
loss to the complainant bank. The prosecution has mainly relied
upon the evidence of these witnesses to prove that, accused has
misused the ATM card. Accused has not disputed that, he is
account holder of SBM and he has got ATM card and he had
balance of Rs.1,194 in his account. But he disputed that, he has
withdrawn Rs.20,60,000/- from ATM. So the prosecution has to
prove that, accused has withdrawn Rs.20,60,000/- by using his
ATM Card. PW.1 during her cross by defence counsel admitted
that, if there is defect in software technology anybody can
withdraw the amount. She admitted that, one person can
withdraw Rs.25,000/- per day from one ATM card. She admitted
6 CC.NO.36986/2011
that, in the account extract of the accused there is no reference
about withdrawal of the amount. She specifically admitted that,
ATM machine of SBM was effected with software problem. So
looking to the above said admissions it is crystal clear that, if
ATM is used for withdrawal of amount the maximum limit per day
is Rs.25,000/- and per transaction an amount of rupees more
than Rs.20,000/- cannot be withdrawn, but as per the case of the
prosecution accused has withdrawn Rs.2,40,000/- on
07/09/2010, Rs.1,40,000/- on 08/09/2010, Rs.3,60,000/- on
10/09/2010, Rs.80,000/- on 14/09/2010, Rs.80,000/- on
19/09/2010, Rs.1,80,000/- on 20/09/2010, Rs.1,80,000/- on
21/09/2010, Rs.1,00,000/- on 22/09/2010, Rs.2,60,000/- on
24/09/2010, Rs.1,60,000/- on 25/09/2010, Rs.2,80,000/- on
26/09/2010.
14. So the case of the prosecution that, accused has
withdrawn more than lakhs rupees per transactions by using ATM
cannot be accepted. If the amount is deducted from the account
of the accused or if ATM is used the bank would enter the said
transactions in the account of the accused and would sent the
messages to the account holder. But Ex.P.3 the statement of
account does not discloses that, ATM card was used from
08/09/2010 to 26/09/2010 for withdrawing of Rs.20,60,000/-.
15. It is specific case of the prosecution that, there was
defect in the software of SBM and it is specific case of the
prosecution that, accused has withdrawn the amount from SBI.
7 CC.NO.36986/2011
So the prosecution has to give expert evidence to prove that,
there was software problem and because of that accused has
misused the ATM card, but the prosecution has not at all
examined expert. It is the case of the prosecution that, accused
has withdrawn the amount from SBI ATM. So the prosecution
has to examine the SBI officials to show that, such a huge
amount was withdrawn by the accused by using the ATM card,
but prosecution has not at all examined SBI officials.
16. It is the case of the prosecution that, accused has
appeared in SBI ATM booth and withdrawn the amount. So
prosecution would have produced the CC.TV footages of said
ATM to show that, accused has personally appeared in said ATM
but prosecution has not tried to examine the CC.TV footages,
and the evidence of the expert. The prosecution has produced
some photo graphs of CC.TV. but these photo graphs are not
marked by the prosecution and in these photo graphs the code
number of SBI ATM is shown, but these photo graphs are not
sufficient to show that, accused has withdrawn more than rupees
one lakhs per transaction. The prosecution has to prove that in
SBI ATM how much amount was deposited by the SBI Bank and
how much amount was withdrawn for each day, but the
prosecution has not at all produced any evidence on that point.
So in the absence of evidence of expert I decline accept the
evidence of PW.1 and 4.
8 CC.NO.36986/2011
17. PW.2 and 3 are panchas to spot panchanama but both
of them have turned hostile. so their evidence is not available to
the prosecution. The learned APP cross examined at length but
nothing is elicited through their cross to prove the case.
18. PW.5 the then HC, PW.7 the then PC of
Yeshawanthpura Police Station deposed about the securing of the
accused, but their evidence is not helpful to the prosecution to
prove involvement of the accused in the offence.
19. PW.6 the PSI deposed about the arrest of the accused
and seizure of the amount. But in the absence of the evidence of
expert and since I decline to accept evidence of PW.1 the
evidence of this police officials is not sufficient to convict the
accused. PW.8 deposed about the registration of the crime, but
his evidence is also not sufficient to attract ingredients of the
offence U/s. 420 of IPC.
20. So looking to the evidence on record I hold that,
prosecution has not at all proved that, accused has withdrawn
Rs.20,60,000/- from using his ATM card from the complainant
bank. Hence I hold that, the prosecution has not at all proved
its case beyond reasonable doubt.
21. It is well settled position of law that, prosecution has to
prove its case beyond any reasonable doubt but the prosecution
has not all proved its case through the evidence of PW.1 to 8. It
is also well settled position of law that if there exists any
9 CC.NO.36986/2011
reasonable doubt in the case of the prosecution then the benefit
of the doubt shall be always given to the accused. In this case
there is no evidence against the accused. Hence I hold that,
prosecution has not proved its case beyond reasonable doubt and
I extend benefit of the doubt to the accused by answering point
No.1 in Negative.
POINT NO.2 :
22. In view of my answer to point No.1 in negative
accused is entitle for acquittal from the offences alleged. Hence I
proceed to pass the following:
ORDER
Acting U/s. 248(1) of Cr.P.C. the accused is acquitted from the offences punishable U/s. 420 of IPC.
The bail bond of the accused and his surety stands cancelled after appeal period is over.
The amount of Rs.1,75,000/- and ATM card seized from the accused shall be released to the accused.
The interim order with respect to Indica Car is made absolute.
(Dictated to the stenographer, script transcribed and computerized by her, corrected and then pronounced by me in open court on this the ........ day of ...................., 2016) (Chinnannavar R. S.) XXIV A.C.M.M., BANGALORE.
10 CC.NO.36986/2011ANNEXURE Witnesses examined for the Prosecution:
PW-1 : Smt. A. Nishani
PW-2 : Rangappa
PW-3 : Ningappa
PW-4 : Balasubramanyam.L.
PW-5 : Ramareddy - PI
PW-6 : Raghavendra.M. - PSI
PW-7 : Rangaswamy - PC
PW-8 : Mohammed Mukarram - PI
Documents marked for the Prosecution:
Ex.P-1 : Statement of Complainant-PW.1 Ex.P-1(a) : Signature of PW.1 Ex.P-2 : Copy of A/c. Opening Form Ex.P-3 : Copy of A/c. Statement Ex.P-4 : Panchanama Ex.P-5 : Spot Panchanama Ex.P-5(a to c) : Signatures Ex.P-6 to 8 : Statements of PW.2, 3, 5 Ex.P-9 : Letter Ex.P-10 : FIR Ex.P-10(a) : Signature Witnesses examined for the accused:
-NIL-
Documents marked for the accused:
-NIL-
(Chinnannavar R. S.) XXIV A.C.M.M., BANGALORE.