Karnataka High Court
Gonzalo Rafael Monje Valenzuela vs State By Thilaknagar P.S. on 27 September, 2019
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF SEPTEMBER 2019
BEFORE
THE HON'BLE MR.JUSTICE K.N.PHANEENDRA
CRIMINAL PETITION NO.6456/2019
BETWEEN:
1. GONZALO RAFAEL MONJE VALENZUELA
SANTIAGO, CHILENA
PASSPORT NO.P11189999
(IN JUDICIAL CUSTODY SINCE 02/07/2019)
UTP NO.6661
2. ANGELO MANVEL VENEGAS BRIONES
CONCEPCION, CHILENA
PASSPORT NO.F20670020
(IN JUDICIAL CUSTODY SINCE 02/07/2019)
UTP NO.6662 ...PETITIONERS
(BY SRI RAVI J.S., ADVOCATE)
AND:
STATE BY THILAKNAGAR P.S.,
REPRESENTED BY THE
STATE PUBLIC PROSECUTOR
HIGH COURT OF KARNATAKA
BANGALORE - 560 001 ...RESPONDENT
(BY SRI ROHITH B.J., HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION
439 OF CR.P.C. PRAYING TO ENLARGE THE PETITIONER ON
BAIL IN CR.NO.120/2019 REGISTERED BY THILAKNAGAR
POLICE STATION, BENGALURU FOR THE OFFENCE
P/U/S.64D, 66 AND 66C OF INFORMATION TECHNOLOGY
ACT, 2000 AND SECTION 419 AND 420 OF IPC.
THIS CRIMINAL PETITION COMING ON FOR ORDERS
THIS DAY, THE COURT MADE THE FOLLOWING:
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ORDER
Heard the learned Counsel for the petitioners and the learned HCGP for the respondent - State. Perused the records.
2. Petitioners are arraigned as accused Nos.1 and 2 in Crime No.120/2019 for the offence under Sections 419 and 420 of IPC and Sections 64D, 66 and 66(c) of the Information Technology Act, 2000.
3. The brief allegation made against the petitioners is that on 02.07.2019 at about 4.30 p.m., when the Officer in-charge working for A.P.S. Pvt.Ltd., which was entrusted with the work of filling up the cash amount to ATM machines, went to Canara Bank ATM machine centre situated at 9th Block, Jayanagar, and when examined ATM machine by putting a card, it was noticed that at the place of card reader, a skimmer was installed and thereafter the same was intimated by the said persons to the complainant. In this context, the Police suspected that some people for the purpose of committing theft of data and also -3- cloning the cards for the purpose of taking out money from the ATM machine, had installed said skimmer to the ATM machine.
4. On the complaint lodged by the complainant, Police have been investigating the matter. During the course of investigation, on suspicion, they have arrested the petitioners and it is submitted that the accused persons by using skimmer machine fraudulently attempted to withdraw money from the accounts of some account holders in various banks, but so far as that aspect is concerned, no material is available to show that they have actually taken out money of any of the customers and there was any complaint by any customers in this regard. Therefore, whether the petitioners are the actual persons, who installed the skimmer to the said machines, or not has to be established during the course of full-dressed trial.
5. Learned High Court Government Pleader also submitted that it is purely based on circumstantial -4- evidence and there are no eyewitnesses to the incident to show that petitioners have actually installed the skimmer machine to the ATM machine. Therefore, that factum has to be appreciated beyond reasonable doubt during the course of full-dressed trial.
6. Learned Sessions Judge has dismissed the bail petition on the ground that the petitioners are foreigners and it becomes very difficult to secure them during the course of trial. In this context, learned Counsel for the petitioners submitted that the petitioners may be directed to surrender their Passports before the trial court and also direct them to abide by the condition that if they want to leave India, they have to take prior permission of the jurisdictional Court, so that the said apprehension can be avoided.
7. Under the above said facts and circumstances of the case, considering the nature of allegations and that the offences are not punishable either with death or imprisonment for life, I am of the opinion that particularly under Section 439 of Cr.P.C. and that the -5- investigation has already completed and the charge sheet has already been filed, the petitioners are entitled to be enlarged on bail with stringent conditions. Hence, the following;
ORDER The Petition is allowed. Consequently, the petitioners shall be released on bail in connection with Crime No.120/2019 of Thilaknagar Police Station pending on the file of I Addl.CMM. Court, Bengaluru, for the offence under Sections 419 and 420 of IPC and Sections 64D, 66 and 66(c) of the Information Technology Act, 2000, subject to the following conditions:
(i) The petitioners shall execute their personal bond for a sum of Rs.1,00,000/-
(Rupees One Lakh only) each with two solvent sureties for the like-sum to the satisfaction of the jurisdictional court.
(ii) The petitioners shall not tamper with the prosecution witnesses.
(iii) The petitioners shall appear before the jurisdictional court on all the future hearing -6- dates unless exempted by the court for any genuine cause.
(iv) The petitioners shall surrender their Passports before the trial court and without prior permission of the court, they should not travel beyond India. The said Passports shall be within the custody of the court till the termination of the proceedings against them.
Sd/-
JUDGE KNM/-