Bangalore District Court
By Using Fake Atm Card. It Is Needless vs And Another on 5 September, 2015
IN THE COURT OF THE IX ADDITIONAL
CHIEF METROPOLITAN MAGISTRATE,
BENGALURU CITY
DATED THIS THE 05th DAY OF SEPTEMBER 2015
PRESENT:
Sri J.V.Vijayananda, B.Com., L L.B.
IX ACMM, Bengaluru
J U D G M E N T U/S 355 of Cr.P.C.
1 CC Number 47023/2010
2 Date of 15-08-2010
Offence
3 Complainant State by Upparpet
Police, Bengaluru City
4 Accused 1. Shailendra Kumar s/o Arun
Prakash, 26 yrs, No.37, Mavari
Village, Koyilwan Post,
Chowrangabad District,
Bihar State.
2. Prakash Kumar - Split Up
5 Offences U/S 380, 420 IPC
Complained of
6 Plea of the Accused No-1 pleaded not
Accused guilty
7 Final Order Accused No-1 Acquitted
8 Date of Order 05-09-2015
2 C.C.No.47023/2010
REASONS
The Police Sub-Inspector of Upparpet P.S., Bengaluru
City has filed the charge sheet against accused No.1 and 2 for
the offences punishable U/S 380 and 420 IPC. It appears
during the pendency of this case, accused No-2 was
continuously absent before the court, and hence vide order
dated 28-02-2012, this case against accused No-2 is split up
and ordered to register separate case, but so far the office has
not registered separate case against him.
2. The brief facts of the case of prosecution are that-
On 15-08-2010 at about 11 a.m., when CW1 Shivaram.R.
Gownkar tried to draw cash from the ATM counter situated
adjacent to SBM Head Office at Avenue Road, Bengaluru, in
one of the machine installed therein, accused No-1 had
informed that the said machine is not working and told to try
in other machine installed therein, as a result of which, CW1
tried in the said machine and had drawn cash of Rs.4,000/-
and left the place. Later on, when CW1 had got entered his
bank pass book, he came to know that Rs.15,000/- was also
got debited in his account on the same date. In this regard, it
is the allegation of prosecution that the accused persons
illegally drawn Rs.15,000/- from the account of CW.1 and
thereby committed the alleged offences.
3. Accused No-1 is on bail. On receipt of charge sheet,
my learned predecessor in office took cognizance of the
offences and furnished the copies of prosecution papers to the
3 C.C.No.47023/2010
accused No.1. After hearing on charges, my learned
predecessor in office has framed charge against accused No-1
for the alleged offences, read over & explained in the language
known to him, wherein he pleaded not guilty and claimed to
be tried.
4. The prosecution in order to prove its case has
examined in all four witnesses as PW1 to 4 and got marked
seven documents as per Ex.P1 to 7. Thereafter, the statement
of accused No-1, as required U/S 313 of Cr.P.C., recorded
wherein he has denied the prosecution case in toto and opted
not to adduce any defence evidence. However thereafter,
necessary application moved by defence came to be, allowed
by this court and accordingly the accused No-1 examined
himself as DW1, and got marked one document, as per Ex.D1.
5. I have heard arguments of both sides and perused the
evidence on record.
6. It is the specific allegation of prosecution that on 15-
08-2010 at about 11 a.m., the complainant Shivaram .R.
Gownkar visited the ATM counter located within the premises
of SBM head office at Avenue Road which is within the limits
of Upperpet police station to draw cash. He tried to draw cash
by using his ATM card in one of the machine installed therein,
but he did not succeed, as the machine had not processed,
accused No-1 who was present in the said ATM counter told
the complainant to draw cash in another machine, as the
4 C.C.No.47023/2010
machine in which the complainant tried to draw cash is not
working. Accordingly, the complainant had drawn cash of
Rs.4,000/- from another machine installed therein.
Thereafter, when the complainant got entered the particulars
of transaction to his pass book, he came to know that there is
an entry regarding drawing of cash of Rs.15,000/- also, on 15-
08-2010 itself, which amount he did not drawn. Therefore, he
lodged complaint to the police. Intern the PSI of Upparpet
police station investigated the matter and laid charge sheet
against accused No-1 & 2 that they are the persons who
illegally drawn cash of Rs.15,000/- from the said ATM
machine in the account of complainant on 15-08-2010.
7. If we look into the allegations made in the complaint, it
is seen that there are no eyewitnesses to the act of drawing the
amount of Rs.15,000/- by this accused and another,
particularly from the account of complainant. Though there is
evidence regarding the presence of accused No-1, mere his
presence is not direct evidence, and if at all, it is only a
circumstantial evidence. Further, if we carefully perused the
charge sheet, it is seen that, the investigation officer has not
placed any direct evidence by way of CC TV footage of said
ATM counter to prove that on 15-08-2010 at some particular
time, accused No-1 along with split up accused No-2, had
illegally drawn the cash of Rs.15,000/- from the account of
complainant, by using fake ATM card. It is needless, to say
that, without using ATM card and pin number, one cannot be
5 C.C.No.47023/2010
in a position to draw the cash from ATM machine illegally.
Moreover, it is not the case of prosecution that this accused
and another used the ATM card of complainant to draw cash
of Rs.15,000/-. Even, it is not the case of prosecution that, by
way of misrepresentation, this accused No.1 came to know the
pin/secret number of complainant and drawn the cash
illegally. However, it appears from the prosecution papers that
the PSI of New Extension P.S., Tumkur had arrested this
accused and another, and recovered the cash pertaining to
this case. Therefore, the present case is, purely based upon
circumstantial evidence.
8. Now, let us consider whether the prosecution is
successful in bringing home the guilt of accused No-1 beyond
all reasonable doubts. PW1 Shivaram .R. Gownkar has almost
re-iterated his complaint averments in his examination in
chief. His testimony further indicating that on 15-08-2010, he
was attempting to draw cash from the ATM counter located
adjacent to the SBM head office at Avenue Road,
Gandhinagar, Bengaluru, which counter consisting of three
machines. He did not get cash from one of the machine he
tried, and at that time, accused No-1 who was present in the
said ATM counter told him to try in another machine.
Accordingly, he tried and got cash of Rs.4,000/-. He confirmed
the remaining cash balance from balance sheet obtained from
the said machine. On the next day, he visited his bank to get
entry of his transaction to his pass book and came to know
6 C.C.No.47023/2010
that on 15-08-2010 itself, Rs.15,000/- was also withdrawn by
somebody. Immediately, he lodged complaint to the Upparpet
police station. Though he had facility of SMS alert, not
received any SMS for having drawn the cash of Rs.15,000/- on
15-08-2010 itself. His testimony further indicates that after
lodging of the complaint, the police visited the ATM counter
and prepared mahazar. Therefore, from the evidence of P.W.1,
it is very much clear that by virtue of complaint lodged by this
P.W.1, the concerned police set the law into motion.
9. It appears in this case, in spite of giving sufficient
opportunities, the prosecution has not examined the
investigation officer C.W.10 herein who received the complaint
from P.W.1, registered the case and prepared spot mahazar.
Further, the prosecution has not examined the independent
spot mahazar witnesses. However, I have carefully perused
the cross-examination of P.W.1 and absolutely, nothing worth
is, elicited from him to doubt his testimony in the matter of
lodging of complaint and preparing of spot mahazar.
10. As per the further case of prosecution, the New
Extension police station PSI, Tumkur, based on the complaint
of illegal drawing of money of one Sridhara Acharya, in ATM
counter had registered the case in his police station, arrested
this accused and another and recovered cash pertaining to
this case by preparing seizure mahazar. It appears in this
case, the prosecution has produced the true copy of said
seizure mahazar as per Ex.P6. It is to be, noted here that, the
7 C.C.No.47023/2010
prosecution in order to prove Ex.P.6 has examined only one
witness who is the seizure panch as per PW3. But, it appears
in spite of giving sufficient opportunities, the prosecution has
not examined another independent seizure mahazar witness
as well as the investigation officer, who conducted the same.
11. Now let us consider whether the prosecution has
established the said seizure mahazar beyond all reasonable
doubts. The testimony of PW3 indicating that on 21-08-2010
at 6.30 p.m., the PSI and staff of New Extension P.S., Tumkur
visited his Shivalinga Lodge situated at Balepet, Bengaluru
along with accused No-2. They enquired him about stay of
accused No-2 & others at his lodge, for which he replied that
accused No-2 along with accused No-1 stayed in his lodge. He
informed the said police that CW5 Ravikumar was working as
cashier at the time of allotment of room to accused persons.
The police informed him about illegal drawing of amount from
ATM by the accused persons from the account of some other
person. The police had told to accompany them, as they have
to inspect the room and to prepare mahazar. Accused No-2
led them to the said room and asked accused No-1 to open the
door. Accordingly, accused No-1 opened the door. The police
verified the room and found cash drawn from ATM worth
Rs.54,000/-, Reliance Mobile Phone, Two Blank ICICI Bank
Cheques, ATM Cards of ICICI & SBM. The police took the
ledger extract of room and seized the above properties under
mahazar. Though PW3 was cross-examined, nothing worth is,
8 C.C.No.47023/2010
elicited from him to doubt his testimony. In my opinion, even
though the prosecution has not examined another
independent seizure mahazar witness and the investigation
officer who prepared the seizure mahazar, I have no reason to
disbelieve the testimony of PW3 in the matter of seizure
mahazar.
12. As stated above, this case is purely, based upon
circumstantial evidence. In order to connect the accused, each
circumstance has to link together like chain. No conviction
based if any one link missed. It can be seen from the records
that four cases have been registered against present accused
No-1 and another including this case, wherein the other cases
are numbered as CC No.47025/2010, CC No.47018/2010 &
CC No.47011/2010, which are pending before this court and
simultaneously posted for judgment. It appears, the
investigation officer of this case who is also investigation
officer in other three cases referred above, took the custody of
accused No-1 & 2 in one of the above referred cases, for the
purpose of investigation. During the course of investigation,
he enquired accused No-1 & 2 and recorded their voluntary
statements. Since, they disclosed information and expressed
that if they taken, they would show the place where they had
illegally drawn the cash, accordingly, this investigation officer
took them to the ATM counter attached to SBM head office
and prepared mahazar as per Ex.P2. It appears the
prosecution to prove Ex.P2 has examined only one witness
9 C.C.No.47023/2010
PW2 Basavaraj herein. The testimony of PW2 indicating that
about two years back, the police called him near SBM
pertaining to drawing of cash from ATM, prepared mahazar
and obtained his signature. He further stated that at that
time, two persons were with the custody of said police, and he
is unable to identify them. Since PW2 has not supported the
case of prosecution, the learned Sr.APP treated him as hostile.
In the cross-examination, PW2 has admitted the suggestion
that on 14-09-2010 police called him as panch and accused
No-1 was with the custody of said police. Though PW2 has
admitted the said suggestion, he further stated that, he is not
in a position to identify accused No-1 clearly. However, he
further admitted regarding preparing of spot mahazar in
between 11 a.m., to 12 noon by the police. In the cross-
examination of PW2 by the learned counsel for accused No-1,
he has admitted that he cannot exactly identify accused No-1,
as the person brought by police at the time of preparing the
mahazar. In my opinion, the testimony of PW2 is not
trustworthy to believe. In my further opinion, in order to
believe the above said testimony of P.W.2, corroboration of
another witness, more particularly investigation officer who
prepared the mahazar is necessary. Unfortunately, in spite of
giving sufficient opportunities, the prosecution has not
examined another independent mahazar witness and
investigation officer who prepared Ex.P2. Therefore, the
prosecution has failed to prove Ex.P2 beyond all reasonable
doubts.
10 C.C.No.47023/2010
13. It is pertinent to note here that in the cross-
examination of learned Sr. APP, P.W.1 the complainant has
admitted that on 14-09-2010, police showed accused No-1 & 2
in the police station. He came to know that the said accused
persons drawn cash from his account. He further admitted
that police had handed over him a sum of Rs.14,000/- out of
stolen cash of Rs.15,000/-drawn from his account. He
voluntarily stated that since accused No-1 was present when
he was drawing the cash from ATM counter, he thought that
he might have committed the offence. Further, in the cross-
examination of learned counsel for accused No-1, PW1 has
admitted that since accused No-1 was present when he was
drawing the cash from ATM, he believed that he might be the
person identified by him in police station. In my opinion, the
testimony of PW1 in the matter of identification of accused No-
1 is not trustworthy to believe because he is not definite
whether he actually identified accused No-1 in the police
station. Even assuming that PW1 has identified accused No-1
in the police station, the said identification is based on the
information given by police, and the same cannot be based to
connect the accused, unless other circumstances
corroborates. In the instant case in view of my above
discussion, the prosecution has failed to prove that, by virtue
of the information given by this accused and another the
investigation officer visited the ATM counter and prepared
mahazar as per Ex.P2. Therefore, the testimony of PW1 in the
11 C.C.No.47023/2010
matter of identification of accused No-1 cannot be based to
hold that this accused along with another illegally drawn the
amount of Rs.15,000/- from the account of PW.1.
14. As stated above, in spite of giving sufficient
opportunities, the prosecution has not examined the
investigation officer who completed the investigation. It
appears, P.W.4 the head constable has deposed regarding
arrest of accused No-2 on suspicion grounds. Admittedly, the
case against accused No-2 already split up and therefore the
above testimony of P.W.4 is only formal one and not requires
detailed consideration. Even assuming that PW4 has arrested
accused No-2 on suspicious ground, based upon his
testimony, accused No-1 cannot be, convicted for the offences
alleged against him unless other circumstances corroborates.
15. I have carefully perused the evidence on record.
Though the prosecution to prove the guilt against accused No-
1 has examined in all four witnesses, there is no link of each
circumstances to connect accused No-1 for the offences
alleged against him. It is to be noted here that, during the
course of investigation, the investigation officer has recovered
the ATM cards of SBM and ICICI Bank from the custody of
accused persons. At the repetition of cost without using the
ATM card and pin/secret number, it would be very difficult to
draw cash from the ATM machine from others account. In the
instant case, though it is the case of prosecution that this
accused and another, illegally drawn the cash of Rs.15,000/-
12 C.C.No.47023/2010
from the account of P.W.1, naturally the accused persons to
draw the said cash might have used the ATM card and secret
pin number or might have used some other technique/skill to
draw the amount without using the ATM card or secret pin
number, from the account of P.W.1. But neither P.W.1 nor
any witnesses have explained the manner in which this
accused and another illegally drawn the cash from the account
of P.W.1 through ATM which is very weak part on the side of
the prosecution to prove the guilt against the accused.
Moreover, the investigation officer has not examined the bank
officer who is an expert in ATM machine, and who is the
person to explain the nature of act of accused persons in
illegally drawing the amount from ATM machine. Further, the
investigation officer has not sent the ATM cards seized
particularly the SBM card to the Forensic Science Laboratory,
in order to confirm whether the accused by using the said
ATM card had drawn the cash from the account of PW1.
Therefore, in my opinion the investigation officer has failed to
conduct proper investigation to establish the guilt of the
accused. In my further opinion, even though the prosecution
has examined four witnesses and almost all the witnesses
have supported the case of prosecution, their evidence is not
sufficient to connect accused No-1 for the offences alleged
against him.
16. As stated above, the accused No-1 has entered into
witness box and deposed that on 17-08-2010, he visited
13 C.C.No.47023/2010
Bengaluru to study 'B' Pharma. On 21-08-2010, he withdrawn
a sum of Rs.14,000/- from his account and as on the same
day, his brother deposited Rs.40,000/- to his account in
Delhi. Further, on the same day, he withdrawn a sum of
Rs.36,000/- in Tumkur. D.W.1 in support of his evidence has
produced his bank statement as per Ex.D.1 (kept in CC
No.47011/2010), wherein we could see the drawing of amount
of Rs.10,000/-, 6,000/- and 20,000/- in all a sum of
Rs.36,000/- on three occasions on 21-08-2010. But the
testimony of D.W.1 is not in corroboration to the drawing of
amount as per Ex.D.1. Anyhow, the accused No-1 has drawn a
sum of Rs.36,000/- on 21-08-2010. Admittedly, the offence
taken place on 15-08-2010. No material is placed by accused
No-1 to substantiate his contention that his brother deposited
a sum of Rs.40,000/- which is also supported by Ex.D.1. But
Ex.D.1 is not conclusive proof to hold that this accused is
totally innocent for the allegation made against him. Anyhow,
the burden is heavy on the prosecution to establish the guilt of
accused No-1 beyond all reasonable doubt. As already noted,
though the prosecution to establish the guilt against accused
No-1 has managed to examine four witnesses, their evidence is
insufficient to connect this accused for the offences alleged
against him. Under the circumstances, on overall scrutiny of
the evidence of witnesses examined by prosecution, this court
is of the considered opinion that the prosecution has
miserably failed to prove its case, beyond all reasonable
doubts. Accordingly, this court is of the view that accused No-
14 C.C.No.47023/2010
1 is entitled for the benefit of doubt. In the result, I proceed to
pass the following:
ORDER
This court did not found guilty of accused No-1 for the offences punishable under Section 380 and 420 of I.P.C., and hence acting under Section 248(1) of Cr.P.C., accused No-1 is acquitted of the said offences.
The bail bond and surety bond of accused No-1 shall stand cancelled. Office to register separate case against accused No-2 as per order of this court dated 28-02-2012 and retain entire case papers of this case in the said spilt up case without fail.
(Dictated to the Stenographer. Transcribed and computerized print out taken by him. Revised, corrected and then 15 C.C.No.47023/2010 pronounced by me in the open court on this day i.e., 05-09- 2015) (J.V.Vijayananda), IX Addl. Chief Metropolitan Magistrate, BENGALURU.
ANNEXURE List of Witnesses examined on behalf of the prosecution:-
PW1 : Shivaram .R. Gownkar PW2 : Basavaraj PW3 : H.G.Venkusa PW4 : A.N.Sudarshan Kumar List of Documents marked on behalf of the prosecution:-
Ex.P1 : Complaint
Ex.P2 : Mahazar Copy
Ex.P3 : Mahazar
Ex.P4 : Bank Pass Book
Statement
Ex.P5 : Photo
Ex.P6 : Mahazar
Ex.P7 : Report of PW4
List of Material objects produced:-
NIL List of Witnesses examined & documents marked on behalf of the defence:
DW1 : Shailendra Kumar Ex.D1 : Bank Statement of Account 16 C.C.No.47023/2010 IX A.C.M.M., BENGALURU. 05-09-2015 Judgment pronounced vide separate sheets. ORDER This court did not found guilty of accused No-1 for the offences punishable under Section 380 and 420 of I.P.C., and hence acting under Section 248(1) of Cr.P.C., 17 C.C.No.47023/2010 accused No-1 is acquitted of the said offences.
The bail bond and surety bond of accused No-1 shall stand cancelled and set at liberty.
Office to register separate case against accused No-2 as per order of this court dated 28-02-2012 and retain entire case papers of this case in the said spilt up case without fail.
IX Addl. Chief Metropolitan Magistrate, Bengaluru.