Kerala High Court
Ajith Urmeese vs State Of Kerala on 22 June, 2018
Author: V Shircy
Bench: V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MRS. JUSTICE SHIRCY V.
FRIDAY, THE 22ND DAY OF JUNE 2018 / 1ST ASHADHA, 1940
Crl.MC.No. 2354 of 2014
CRIME NO. 2676/2013 OF ANGAMALI POLICE STATION , ERNAKULAM
PETITIONER(S)/PETITIONER :-
AJITH URMEESE
S/O.URMEESE, CHAKKICHERRY, PALAKKARA, ANGAMALY,
ERNAKULAM-683572
BY ADVS.SRI.PRAVEEN K. JOY
SRI.NIXON PAUL
RESPONDENT(S)/RESPONDENTS :-
1. STATE OF KERALA
REP BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM,REP BY THE STATAION HOUSE OFFICER, ANGAMALY
POLICE STATION-686503
2. THE REGIONAL MANAGER
STATE BANK OF INDIA, REGIONAL OFFICE,SHANMUGHAM ROAD,
ERNAKULAM, KOCHI-31
R2 BY ADV. SRI.SHAIJAN C.GEORGE
R2 BY ADV. SMT.S.REKHA KUMARI
R1 BY SMT.M.K.PUSHPALATHA, PUBLIC PROSECUTOR
THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 22-06-2018,
THE COURT ON THE SAME DAY PASSED THE FOLLOWING:
Crl.MC.No. 2354 of 2014 ()
APPENDIX
PETITIONER(S)' ANNEXURES :-
ANNEX.I:- TRUE PHOTOCOPY OF THE STATEMENT OF ACCOUNT FROM 1/7/2012 TO 31/12/12
OF THE STATE BANK OF INDIA
ANNEX II:- TRUE PHOTOCOPY OF THE COMPLAINT DTD 15/11/2013 OF THE 2ND
RESPONDENT
ANNEX III:- TRUE COPY OF THE STATEMENT FROM 1/2/2013 TO 31/3/2013 OF THE 2ND
RESPONDENT BANK
ANNEX IV:- TRUE PHOTOCOPY OF THE FIR NO 2676/13 OF JUDICIAL MAGISTRATE COURT
II, ALUVA
RESPONDENT(S)' ANNEXURES :- NIL
//TRUE COPY//
PA TO JUDGE
SMA
SHIRCY V, J
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CRL.M.C.NO.2354 of 2014
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Dated this the 22nd day of June, 2018
ORDER
The 3rd accused in Crime No.2676 of 2013 of Angamaly Police Station has approached this court with this petition seeking exercise of inherent jurisdiction under section 482 Cr.P.C to quash the proceedings initiated against him and six others on the basis of a complaint lodged by the second respondent, who is the Regional Manager of State Bank of India, Ernakulam.
2. Annexure A4, the F.I.R was registered by the Angamaly Police Station under section 420 of IPC and 66 (A) and (C) of Information Technology Act. It is discernible from Annexure A2 complaint that one Aby Chakkiath and his group of culprits conspired together and cheated various branches of State Bank of India through illegal use of mobile banking transactions and as per the preliminary CRL.M.C.NO. 2354 of 2014 2 investigation made, the loss caused to the bank amounts to Rs.70,43,164/-(Rupees Seventy Lakhs Forty Three Thousand One Hundred and Sixty Four only) and the culprits could make a wrongful gain of about Rs.70,43,164/-(Rupees Seventy Lakhs Forty Three Thousand One Hundred and Sixty Four only). It was a joint collusion between these persons and they effected fraudulent transactions and therefore the second respondent had preferred the complaint to the police to investigate into the matter. Thus, the FIR was registered on 15.11.2013 by the police and the investigation has started.
3. The learned counsel for the petitioner submitted that the petitioner, who is arraigned as Accused No.2, was running travel agency business and had transaction with the bank. But the allegation that he has cheated the bank and caused financial loss to the bank, are absolutely false and baseless. It is further contended that the statement of him with the bank will not show any trace CRL.M.C.NO. 2354 of 2014 3 or element of cheating and he had only transferred money for his official purpose as he was running a travel agency. In support of his contention he had produced the statement of accounts from 01.07.2012 to 31.12.2013 as Annexure A1 along with this petition.
4. It is further contended that in the complaint it is only stated that the investigation has to be conducted in the matter and the bank may be permitted to recover the amount lost from the bank. At the most it could only be treated as a civil dispute between the parties and for the same registration of a criminal case is not at all necessary, and the allegation made in the complaint by the bank authorities does not disclose the ingredients to attract an offence under section 420 of IPC and hence this case has to be treated as one of mere abuse of process of court and therefore the FIR is liable to be quashed under section 482 Cr.P.C.
5. On the other hand, the learned counsel for the CRL.M.C.NO. 2354 of 2014 4 second respondent has filed a detailed statement opposing the petition. It is contended that the bank is working with core banking system in which the updating of the data of transactions of a day of 24 hours is being carried out at the end of the day (EOD) i.e., at zero hour. The updating of the entire transaction in the core banking system are being carried out from 00.00 hour to nearly 02.00 hours . During the said period of 2 hours, the real transactions such as debiting the accounts will be put on hold concerning the accounts attached to each branches. At the same time the transactions for the fund transfer by using mobile (IMPS) are being honoured on a satisfaction of physical presence of sufficient funds in the respective remitter account at the specific time of giving instructions through SMS using mobile phone. When the transaction through mobile phone is received and verified about the presence of sufficient amount in the account of the customer, instructions will be transmitted to the National Payment Corporation of India CRL.M.C.NO. 2354 of 2014 5 ( for short NPCI) to credit the respective amounts to the respective account or person. During these hours the actual physical debiting from the remitter account will be in hold up to the start of the day. On realising the characteristics of the transaction during this transitional period and the arrangements of instant crediting of the amount to the beneficiary account after verifying the availability of fund in the remitter account programmed by in between the bank and the NPCI, the petitioner and the other accused persons conspired together to make illegal gain by making clandestine transactions by making use of the mobile IMPS facility. They opted to put specific amount in their account to reflect sufficient amount and made use of the mobile IMPS facility in between the two hours ie at the zero hour and thus amount was got credited to the beneficiary bank account and then dishonestly removed the amount deposited with the remitter account maintained in SBI,by using ATM or internet banking facility. The actual debiting in the remitter account will be CRL.M.C.NO. 2354 of 2014 6 carried out on the resumption of the entire working of core banking system after updating at the point of time of Start of the Day (SOD). But by that time the accused persons under conspiracy had clandestinely and dishonestly removed the amount deposited in their account with SBI already ordered to transfer and transferred by NPCI and thus committed the aforesaid offences.
6. It is also submitted by the learned counsel for the second respondent that the investigation can be proceeded and completed only with the help of experts in the field as the offences committed by the accused persons including the petitioner attracted the offences under the Information Technology Act and hence sufficient time is required to complete the investigation.
7. It is further contended that the argument advanced by the learned counsel for the petitioner that no offence is made out on the basis of Annexure A2 complaint lodged by the bank is absolutely baseless. In fact a thorough CRL.M.C.NO. 2354 of 2014 7 and detailed enquiry with the help of experts is required and hence this petition is without any merits and it is liable to be dismissed.
8. Heard the learned counsel for the petitioner, learned counsel for the second respondent and the learned Public Prosecutor in detail.
9. It is pertinent to note that prima facie a strong case of cheating is alleged against the accused persons that they had cheated the bank for more than one crore by making use of the facility available to the customers of the bank. Definitely a detailed probe with the help of experts in the field is essential to unearth the entire malpractice alleged to have been committed by these accused persons. At this initial stage of investigation, it is absolutely not possible to infer that there is no element of cheating. Prima facie the allegation in the FIR discloses that as a result of the conspiracy hatched between the accused persons an offence has been committed and it is made out CRL.M.C.NO. 2354 of 2014 8 against the accused and for that a detailed probe is required.
10. The offence alleged in one under Section 420 of IPC which reads as follows :
b