‘Every sinner has future, hate crime not criminal’: Why Karnataka High Court freed ATM card cloners after around 15 years

It further added, “It is to be noted that every sinner has a future and criminal justice system should hate the crime and not the criminal.”

Background

• The petitioners Sahadevaprasad and Jayabhadhakumar were convicted by a trial court in 2013 for offences under Section 66(c) (identity theft) of the Information Technology Act, 2000 and Section 380 (theft in dwelling house, etc) read with Section 34 (common intention) of the Indian Penal Code (IPC). They were sentenced to imprisonment for a period of three and two years each. While one convict was slapped with a fine of Rs 25,000, the other had to pay Rs 5,000.
• The conviction was later confirmed by the appellate court in 2015.
• The counsel for the petitioners contended that no ingredients were placed on record by the prosecution to attract the offence.
• It was further argued that there was no material proof confirming that the petitioners had withdrawn the money from the ATM by duplicating the cards.
• Alternatively, it was also urged that in the event the conviction is upheld, the sentence can be reduced as the petitioners were first-time offenders.
• On the other hand, the high court’s government pleader submitted that the allegations against the petitioners were serious in nature inasmuch as they had defrauded the original card holders by duplicating their card by using technology and withdrawn the money.
• It was argued that merely because the prosecution could not place any other case on record, there could not be any leniency shown to the petitioners and thus, dismissal of the revision petition was sought.

Court’s findings

• It is crystal clear that the conviction order passed by the trial magistrate, confirmed by the First Appellate Court, needs no interference as there are sufficient materials on record which would conclusively establish that the petitioners did indulge in duplicating the ATM cards and thereafter withdrew the money.
• They misused technology to their advantage and stole the passwords.
• The first appellate court, on reappreciation of the material evidence placed on record, found that it is sufficient enough to maintain the conviction of the petitioners for the offences punishable under Section 66(c) of the IT Act and Section 380 read with Section 34 of IPC.
• Having said so, the trial magistrate has taken note of the fact that the petitioners are first-time offenders and one of the petitioners has a young wife and a two-year-old girl child to maintain and they have cooperated for the early disposal of the criminal case.
• In fact, a prima facie opinion is also formed by the trial magistrate in her discretion that the petitioners would be entitled for the benefit of the Probation of Offenders Act.
• However, the trial magistrate noted that the nature of the offences and the intelligence used by the petitioners in committing the offence would come in the way of exercising the discretionary power under the Probation of Offenders Act, and denied the said benefit to the revision petitioners.
• Taking note of the same and calling for the opinion from the probation officer, at this distance of time, especially when both the petitioners are now residing in Bihar, eking out their livelihood through employment it would be a futile exercise.

Court’s directions

• While maintaining the conviction of the accused persons for the aforementioned punishable offences, the custody period already undergone by the petitioners is treated as a period of imprisonment by enhancing the fine amount to Rs 2 lakh.