Karnataka High Court
Mr Godwin Jinto Joy vs The State Of Karnataka on 17 March, 2022
Author: K.Natarajan
Bench: K.Natarajan
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL PETITION NO.7259 OF 2021
C/W
CRIMINAL PETITION NO.8244 OF 2021
IN CRIMINAL PETITION NO.7259 OF 2021:
BETWEEN
1. MR GODWIN JINTO JOY
AGED ABOUT 37 YEARS
S/O. K T JOY MAZID,
R/AT KARIPAI HOUSE,
MODIKARANDI POST,
CHALLKANI, TRISUL,
KERALA - 671 323.
2. MR. DINESH SINGH RAVATH
AGED ABOUT 44 YEARS
S/O. S H UTTAMSINGH
R/AT NO.2087,
NEAR RAILWAY TRACK
PREM NAGAR,
DELHI - 110 086
3. MR. ABDUL MAJEED
AGED ABOUT 27 YEARS
R/AT MEEPUGURI POST,
KUDLU,
KASARGOD DISTRICT,
KERALA - 671 121
4. MR. AJMAL T K
AGED ABOUT 27 YEARS
2
S/O IBRAHIM
R/AT AYUSH MANALI
VIDHYANAGAR
KASARGOD
KERALA - 671 124.
5. MR. RAHUL T S
AGED ABOUT 24 YEARS
S/O SATHISH
R/AT TEKKAVIL VEEDU,
PACHACHEKADI POST,
YADATHVA,
ALGUR DISTRICT,
KERALA - 680 683.
... PETITIONERS
(BY SRI VIKRAM RAJ A., ADVOCATE FOR
SMT NIVEDITHA SHETTY, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH THE SUB INSPECTOR OF POLICE,
CYBER CRIME POLICE STATION,
MANGALURU,
DAKSHINA KANNADA,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU
2. DR. VIJAYA
AGED ABOUT 49 YEARS
W/O. DR. UDAYA NAYAK,
R/AT ASTORIA APARTMENT,
FLAT NO. 202,
NEAR BALMATA POST OFFICE,
MANGALURU - 575 002
3. CAROLINA MARRIA PIAS
AGED ABOUT 48 YEARS
W/O. TIMTON COELHO,
R/AT NO. 2-21-1642,
3
SHANTHI, URWA,
MANGALURU - 575 006
4. KARUNAKARA PAI
AGED ABOUT 62 YEARS
S/O. C KRISHNA PAI,
R/O. 401, SAI RESIDENCY
CHILIMBI,
MANGALURU - 575 003
5. PRAKASH BHANDARY BANTWAL
AGED ABOUT 54 YEARS
S/O. L VENKATESH BHANDARY,
R/AT ANUGRAHA, 1-25-21-23/1,
LONG LANE, URWA,
MANGALURU - 575 006
6. FELSI LEENA FERNANDES
AGED ABOUT 55 YEARS
W/O. JARALD ANTONY FERNANDES,
R/AT 1-9-539/2, CHRIST JEWELLERY,
BEHIND GOVERNMENT QUARTERS,
URWA STORE
MANGALURU - 575 003
7. RATHNAKAR M SUVARNA
AGED ABOUT 71 YEARS
S/O. LATE MANJAPPA,
R/AT MATHASHRI, 7-24-6K/1,
7TH BLOCK, KRISHNAPURA ,
SURTHKAL, MANGALURU - 575 014
8. MRS. CELIENA RODRIGUS
AGED ABOUT 65 YEARS
W/O. L. BASIL LOBO,
R/AT 2-7-520/13M,
CHILIMBI HILL BEJAI POST,
MANGALURU - 575 006
9. MR. ARTHUR EP PINTO
AGED ABOUT 82 YEARS
4
S/O. L ANTONY PINTO,
R/AT OPPOSITE TO URVA CHURCH,
LADY HILL,
MANGALURU - 575 003
10 . N. RAJENDRAN
AGED ABOUT 54 YEARS
S/O. LATE NARAYANAN,
MANAGAR (TECHNICAL) PREMISES AND ESTATE
SECTION,
CIRCLE OFFICE CANARA BANK MANGALURU,
R/AT FLAT NO. A10/5TH FLOOR,
CANARA BANK QUARTERS,
HILL SIDE APARTMENT,
CHILIMBI, LADY HILL,
MANGALURU - 575 011.
11 . PRAMOD KUMAR
AGED ABOUT 62 YEARS
S/O. DEVENDRA DEVADIGA,
R/AT NO 4-152/12, DEVANUGRAHA,
ANAND NAGARA, 2ND CROSS,
GOLLRABETTU, AKASHABHAVANA,
KAVOORU POST,
MANGALURU - 575 005
... RESPONDENTS
(BY SRI B.J. ROHITH, HCGP FOR R1
NOTICE TO R2 DISPENSED WITH VIDE ORDER DATED
15.12.2021)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO
ENLARGE THE PETITIONER ON BAIL IN THE EVENT OF HIS
ARREST IN a) C.C.NO.1101/2021 OF CYBER POLICE STATION
PENDING ON THE FILE OF J.M.F.C. (VII COURT), MANGALURU,
AND b) C.C.NO.1117/2021 OF CYBER POLICE STATION
PENDING ON THE FILE OF J.M.F.C. (VII COURT), MANGALURU
AND c) C.C.NO.1121/2021 OF CYBER POLICE STATION
PENDING ON THE FILE OF J.M.F.C. (VII COURT), MANGALURU
AND d) C.C.NO.1123/2021 OF CYBER POLICE STATION
PENDING ON THE FILE OF J.M.F.C. (VII COURT), MANGALURU
AND e) C.C.NO.1115/2021 OF CYBER POLICE STATION
5
PENDING ON THE FILE OF J.M.F.C. (VII COURT), MANGALURU
AND f) C.C.NO.1125/2021 OF CYBER POLICE STATION PENDING
ON THE FILE OF J.M.F.C. (VII COURT), MANGALURU AND g)
C.C.NO.1118/2021 OF CYBER POLICE STATION PENDING ON
THE FILE OF J.M.F.C. (VII COURT), MANGALURU AND h)
C.C.NO.1122/2021 OF CYBER POLICE STATION PENDING ON
THE FILE OF J.M.F.C. (VII COURT), MANGALURU AND i)
C.C.NO.1103/2021 OF CYBER POLICE STATION PENDING ON
THE FILE OF J.M.F.C. (VII COURT), MANGALURU AND j)
C.C.NO.1110/2021 OF CYBER POLICE STATION PENDING ON
THE FILE OF J.M.F.C. (VII COURT), MANGALURU AND k)
C.C.NO.1112/2021 OF CYBER POLICE STATION PENDING ON
THE FILE OF J.M.F.C. (VII COURT), MANGALURU AND CLUBBED
TOGETHER AND TRIED AT ONE TRIAL.
IN CRIMINAL PETITION NO.8244 OF 2021:
BETWEEN
1. MR GODWIN JINTO JOY
AGED ABOUT 37 YEARS
S/O. K T JOY MAZID,
R/AT KARIPAI HOUSE,
MODIKARANDI POST,
CHALLKANI, TRISUL,
KERALA - 671 323.
2. MR. DINESH SINGH RAVATH
AGED ABOUT 44 YEARS
S/O. S H UTTAMSINGH
R/AT NO.2087,
NEAR RAILWAY TRACK
PREM NAGAR,
DELHI - 110 086
3. MR. AJMAL T K
AGED ABOUT 27 YEARS
S/O IBRAHIM
R/AT AYUSH MANALI
VIDHYANAGAR
KASARGOD
KERALA - 671 124.
6
4. MR. ABDUL MAJEED
AGED ABOUT 27 YEARS
R/AT MEEPUGURI POST,
KUDLU,
KASARGOD DISTRICT,
KERALA - 671 121
5. MR. RAHUL T S
AGED ABOUT 24 YEARS
S/O SATHISH
R/AT TEKKAKAVIL VEEDU,
PACHACHEKEDI POST,
YADATHVA,
ALGUR DISTRICT,
KERALA - 680 683.
... PETITIONERS
(BY SRI VIKRAM RAJ A., ADVOCATE FOR
SMT NIVEDITHA SHETTY, ADVOCATE)
AND
1. THE STATE OF KARNATAKA
THROUGH THE SUB INSPECTOR OF POLICE,
CYBER CRIME POLICE STATION,
MANGALURU,
DAKSHINA KANNADA 575 001,
REP BY STATE PUBLIC PROSECUTOR,
HIGH COURT OF KARNATAKA,
BENGALURU - 560 001
2. YASHAVANTHA
AGED 41 YEARS
S/O K MAHABALA DEVADIGA
NO.9-144 NEKKAREMAR
GORIGUDDE, KANKANADY
MANGALURU-575002.
3. JANET D SOUZA
AGED 54 YEARS
W/O JOSEPH D SOUZA
GILBERT VILLA
7
HOLY HILL ROAD
MAROL I, KULASHEKARA POST
MANGALURU-575005.
4. VASANTHA K
AGED 35 YEARS
S/O K LINGAPPANNA MOLLY'S
2-19/2, EKKURU
JEPPINAMOGERU HOIGEBAZAR
MANGALURU-575007.
5. PURUSHOTTAM SALIAN
AGED 50 YEARS
S/O CHANDRASHEKR
R/AT KRISHNA PANDIT COMPOUND
GUDDE TOTA NAGURI
MANGALURU-575002.
6. BHASKAR SHETTY
S/O L SANJEEVA SHETTY
AGED 50 YEARS
R/AT 2-189, ARKULA TUPPEKALLU
MANGALURU-574143.
7. JOSLEN LASRADO
AGED 38 YEARS
S/O JEROME LASRADO
R/AT FLAT NO.208 FORTUMA
KARUMA BUILDING
NEAR ALAPE, NAGURI
MANGALURU-575002.
... RESPONDENTS
(BY SRI B.J. ROHITH, HCGP FOR R1
NOTICE TO R2 DISPENSED WITH VIDE ORDER DATED
15.12.2021)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482
OF THE CODE OF CRIMINAL PROCEDURE, PRAYING TO A. ISSUE
APPROPRIATE ORDERS/DIRECTIONS CLUBBING THE CRIMINAL
CASE IN C.C.NO.1116/2021 OF CYBER POLICE STATION
PENDING ON THE FILE OF THE VII-JMFC, MANGALURU AND
8
C.C.NO.1109/2021 OF CYBER POLICE STATION PENDING ON
THE FILE OF THE VII-JMFC, MANGALURU AND
C.C.NO.1111/2021 OF CYBER P.S., PENDING ON THE FILE OF
THE VII-JMFC, MANGALURU AND C.C.NO.1124/2021 OF CYBER
P.S., PENDING ON THE FILE OF THE VII-JMFC, MANGALURU
AND C.C.NO.1119/2021 OF CYBER P.S., PENDING ON THE FILE
OF THE VII-JMFC, MANGALURU AND C.C.NO.1114/2021 OF
CYBER P.S., PENDING ON THE FILE OF THE VII-JMFC,
MANGALURU AND CONSEQUENTLY DIRECT THE TRIAL COURT
IN THE ABOVE CASES TO HOLD TRIAL OF ALL THE ABOVE
CASES TOGETHER. B. ISSUE APPROPRIATE ORDERS/
DIRECTIONS DISCHARGING THE PETITIONERS FROM THE
OFFENCES UNDER SECTIONS 419, 420 OF IPC IN ALL THE
ABOVE CASES PENDING ON THE FILE OF THE VII JMC,
MANGALURU.
THESE CRIMINAL PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 23.02.2022 THROUGH VIDEO
CONFERENCING THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
ORDER
Crl.P. No.7259/2021 is filed by the petitioner accused Nos.1 to 5 under Section 482 of Cr.P.C. directing the JMFC (VII Court), Mangaluru, to club eleven criminal cases in C.C. Nos.228/2021 of cyber police station pending on the file of II Additional Senior Civil Judge and CJM at Mangaluru, C.C.No.1117/2021, C.C.No.1121/2021, C.C.No.1123/2021, C.C.No.1115/2021, C.C.No.1125/2021, C.C.No.1118/2021, C.C.No.1122/2021, C.C.No.1103/2021, C.C.No.1110/2021 and C.C.No.1112/2021 of cyber police 9 station pending on the file of J.M.F.C. (VII Court), Mangaluru, and conduct a single trial.
2. Crl.P. No.8242/2021 is filed by the same accused Nos.1 to 5 under section 482 of Cr.P.C directing the trial Court to club six criminal cases and conduct a joint trial in C.C. No.1116/2021, C.C.No.1109/2021, C.C. No.1111/2021, C.C.NO.1124/2021, C.C. NO.1119/2021, C.C.NO.1114/2021, all are of Cyber P.S., pending on the file of the VII-JMFC, Mangaluru and consequently, direct the trial Court in the above cases to hold trial of all the above cases together.
3. Heard the arguments of learned counsel for the petitioners and learned High Court Government Pleader for the respondent-State.
4. The case of the prosecution is that the accused persons said to have committed cheating for the offences punishable under Sections 417, 419 and 420 of IPC and 10 under Sections 66(D) and 66(C) of the Information Technology Act, 2008 (hereinafter referred to as 'IT Act' for short). It is alleged in all the cases filed by the complainants that they are having accounts at State Bank of India and they withdrew some money from ATM of Canara Bank at Balmat and later, they came to know that more money has been withdrawn from their respective accounts. After registering the case, the police arrested the present petitioners-accused Nos.1 to 5. There were eleven cases registered against the petitioners for the offences committed on the particular day and other six cases registered against them for committing the similar offence on the next day. There were individual complaints filed by the account holders and therefore, the police have filed individual charge sheet in all the cases against the same petitioners-accused persons.
5. Learned counsel for the petitioners contended that the offence committed in the same transaction by using the skimming machine and it was taken place on 11 31.11.2020 and in other cases, on 01.12.2021. Therefore, by creating ATM card, withdrawn the money by using skimming machine, which amounts to one offence and one conspiracy. There may be different victims for a single offence. Therefore, all these cases shall be tried as single offence as per Section 220 of Cr.P.C. and also there shall be joint trial in all the cases and accordingly, prayed for allowing the petitions.
6. Learned High Court Government Pleader objected the petitions and contended that there are number of complaints, who are all victims. Therefore, as per section 219 of Cr.P.C., three cases can be tried together as one trial. He has contended that all the cases cannot be clubbed together in conducting one trial and hence, prayed for dismissing the petitions.
7. Having heard the arguments of learned counsel for the petitioners and learned High Court Government Pleader for the State and upon perusal of the records, 12 before going to the case of the petitioners, it is worth to mention Section 220 of Cr.P.C., which is as under:
Section 220: Trial for more than one offence -
(1) If, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person, he may be charged with and tried at one trial for, every such offence.
(2) When a person charged with one or more offences of criminal breach of trust or dishonest misappropriation of property as provided in sub-section (2) of section 212 or in sub-section (1) of section 219, is accused of committing, for the purpose of facilitating or concealing the commission of that offence or those offences, one or more offences of falsification of accounts, he may be charged with and tried at one trial for, every such offence.
(3) If the acts alleged constitute an offence falling within two or more separate definitions of any law in force for the time being by which offences are defined or punished, the person accused of them may be charged with and tried at one trial for, each of such offences.
(4) If several acts, of which one or more than one would by itself or themselves constitute an offence, constitute when combined a different offence, the person accused of them may be charged with and tried at one trial for the offence constituted by such acts when combined and for any offence constituted by anyone, or more of such acts.13
(5) Nothing contained in this section shall affect section 71 of the Indian Penal Code (45 of 1860)
8. On bare reading of Sub-section (1) of Section 220, it clearly empowers the Court to charge and try at one trial, for every such offence, if, in one series of acts so connected together as to form the same transaction, more offences than one are committed by the same person.
9. Here, in this case, the accused persons by conspiracy among them to cheat the complainants, they kept the skimming machine in the ATM and they scanned the ATM card number and PIN number of the customers, taken the skimming machine to the room, created separate ATM cards of the each complainant and then withdrew the money from their individual accounts and thereby, the petitioners have committed offences publishable under Sections 417, 420 of IPC as well as Sections 66(C) and 66(D) of the IT Act, which is the series of acts forming part of same transaction, more offences 14 than one are committed, which is charged separately but tried together as one trial.
10. In these cases, in a similar act of cheating, the different complainants have been suffered. The accused by forging or creating separate ATM cards, withdrew money from the different person's accounts. Such being the case, all these eleven cases cannot be tried as one trial and they have to be tried separately. However, all are similar cases and committed within one year and therefore, as per Section 219 of Cr.P.C., three cases can be tried as one joint trial.
11. Even no such illustration is available in the Code of Criminal Procedure to Sub-section (1) of Section 220. It is relevant to mention illustration (d) to Sub-section (1) of Section 220 Cr.P.C., which reads as under:
Illustration to Section 220(1) of Cr.P.C.
(d) A has in his possession several seals, knowing them to be counterfeit and intending to use them for the purpose of 15 committing several forgeries punishable under section 466 of the Indian Penal Code (45 of 1860). A may be separately charged with and convicted of the possession of each seal under section 473 of the Indian Penal Code (45 of 1860).
12. The petitioners-accused though used one skimming machine and the same technology and one conspiracy, but, they created or forged ATM cards of the different complainants and thereby, they have committed the offence and they are to be charged and convicted separately for possession of each forged ATM cards. Therefore, there must be a separate charge and the accused must have been convicted for cheating different complainants by creating fake ATM cards and all eleven cases cannot be charged together as one trial. Therefore, the contention of the learned counsel for the petitioners cannot be acceptable that all eleven cases and other six cases can be connected and trial be conducted, but it should be three cases as one joint trial under section 219 of Cr.P.C.
16
13. Learned High Court Government Pleader has relied upon the judgments of the Hon'ble Supreme Court in case of A.T. Mydeen and Another Versus Assistant Commissioner, Customs Department reported in 2021 SCC OnLine SC 1017, paragraphs No.36 to 39 read as under:
"36. Further, it would be worthwhile to mention here that the prosecution in both the trials produced seven witnesses and filed 13 documents which were proved and exhibited. The witnesses in the second case were not examined in the same sequence as the first case and consequently, the 13 documents filed were also not given the same exhibit numbers in the second case as in the first case. The following chart will show the specific sequence numbers of the witnesses in both the trials as well as the exhibit numbers of the documents filed and proved in both the trials. The chart reads as follows : -17
" LIST OF WITNESSES CC.No.2/20 Name of Witness CC.No.4/2 03 004 (Dhanapal (Alexander and others) ) PW1 Selvaraj PW1 PW2 Kalaimani PW4 PW3 Shree Ram PW5 PW4 Sankaralingam PW2 PW5 Sundararajan PW3 PW6 Mylerum Perumal PW6 PW7 Balraj PW7 LIST O DOCUMENTS CC.No.2/2003 Documents Marked CC.4/2004 (Dhanapal (Alexander) and others) Ext. P1 Sanction Order Ext. P5 Ext. P2 Mahazar (Seizure- Ext. P3 Godown) Ext. P2 Statement of Ext. P7 Ext. P4 Rahman Sait Statement of Ext. P8 Ext. P5 Janarthanan Statement of Ext. P9 Ext. P6 Ramesh Statement of Ext. P11 Ext. P7 Mydeen Mahazar (Search Ext. P8 Statement
- Godown) of Hari Ext.P12 Gangaram Ext. P1 Ext. P9 Identity Card of Ext. P2 Rajan 18 Ext. P10 Mahazar (Seizure - Ext. P3 Room) Ext. P11 Statement of Ext. P4 Mahadevan Ext. P12 Adjudication Order Ext. P13 Ext. P13 Shipping Bill Ext. P10 Judicial Exhibits Marked Judicial Report Not marked
37. Now, merely because the seven witnesses produced by the prosecution were the same in both the cases would not mean that the evidence was identical and similar because in the oral testimony, not only the examination-in-chief but also the cross-examination is equally important and relevant, if not more. Even if the examination-
in-chief of all the seven witnesses in both the cases, although examined in different sequence, was the same, there could have been an element of some benefit accruing to the accused in each case depending upon the cross-examination which could have been conducted maybe by the same counsel or a different counsel. The role of each accused cannot be said to be the same. The same witnesses could have deposed differently in different trials against different accused differently depending upon the complicity or/and culpability of such accused. All these aspects were to be 19 examined and scrutinised by the Appellate Court while dealing with both the appeals separately and the evidence recorded in the respective trials giving rise to the appeals.
38. We cannot proceed on presumption and assume that everything was identical word to word. We are therefore, not inclined to accept the submission of Mr. Banerjee and in fact both the judgments relied upon by Mr. Banerjee having similar facts as the present case lay down the same proposition of law that evidence of one trial can be read only for the purposes of the accused tried in that trial and cannot be used for any accused tried in a separate trial. The view taken by the Calcutta High Court in 1928, expressed by Rankin, C.J., has been appropriately followed and accepted and is the correct view.
39. The provisions of law and the essence of case-laws, as discussed above, give a clear impression that in the matter of a criminal trial against any accused, the distinctiveness of evidence is paramount in light of accused's right to fair trial, which encompasses two important facets along with others i.e., firstly, the recording of evidence in the presence of accused or his pleader and secondly, the right of accused to cross- examine the witnesses. These facts are, of course, 20 subject to exceptions provided under law. In other words, the culpability of any accused cannot be decided on the basis of any evidence, which was not recorded in his presence or his pleader's presence and for which he did not get an opportunity of cross-examination, unless the case falls under exceptions of law, as noted above."
14. Learned counsel for the petitioners has also relied upon in AMITBHAI ANILCHANDRA SHAH VS. CENTRAL BUREAU OF INVESTIGATION AND ANOTHER reported in (2013)6 SCC 348. In the facts and circumstances of the case, the said case is not applicable to the present case on hand.
15. Similarly, in Crl. P. No.8244/2021, the petitioners have prayed for clubbing of six cases to be tried as one case, which cannot be acceptable in view of the observations made by this Court in the above connected criminal petition i.e. Crl.P. No.7259/2021. 21
16. However, the trial Court can club three cases together and conduct joint trial as per Section 219 of Cr.P.C. For the purpose of framing of charge and conducting one trial, the provisions of Section 220 of Cr.P.C. is applicable only for different offences in one case i.e. Sections 417, 420 and 120B of IPC and Sections 66(C) and 66(D) of IT Act.
17. Accordingly, both the criminal petitions filed by the petitioners-accused are allowed in part.
The trial Court is directed to try three cases in each trial/offence as per Section 219 of Cr.P.C. and proceed to conduct trial in accordance with law.
Regarding prayer of the petitioners for clubbing of all eleven cases into one trial and six cases as another trial, is hereby dismissed.
Sd/-
JUDGE CS