1 2025:CGHC:22146 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR CRR No. 1404 of 2024 1 - Vikram Godara @ Sandeep S/o Late Ashil Kumar, Aged About 35 Years R/o Village- Surakhpur, P.S. Dujana, District-Jhajhar (Haryana) ...Applicant(s) versus 1 - State Of Chhattisgarh Through- Police Station- C.S.E.B., District- Korba (C.G.) ... Respondent(s) For Applicant(s) : Shri Amit Kumar, Advocate For Respondent/State : Ms. Vaishali Mahilong, PL (Hon’ble Shri Justice Arvind Kumar Verma ) Order on Board 19/02/2025 The present revision arises out of the impugned order and judgment dated 09.07.2024 passed by the Special Judge, Bemetara SC/ST (AN) Act, Kora, District Korba in Cr. Appeal No. 58/2024 whereby the learned appellate Court below has confirmed the conviction and sentence of the accused/applicant as awarded by the learned trial court vide its judgment dated 4.12.2024 in Cr. Case No. 2 2427/2023 for the offence under Sections 420/34 and 120-B IPC and sentenced them to undergo RI for seven years and fine of R. 500/- u/s. 420/34 and to undergo RI for six months and fine fo Rs. 500/- u/s. 120- B, plus default stipulations. 2. Brief facts of the case are that on 11.09.2023, complainant Ashish Kant Pal went to the SBI ATM, Korba in Budhwari Bazar to withdraw money from his account and when he inserted the card in the machine, it showed error and at that point of time, the one person earing a light blue T-shirt entered and informed the complainant that it was not working and let him check. Thereafter again it was showing error and then he gave the card to him and left. After sometime when the complainant again tried to withdraw the money, he received a message in his mobile that Rs. 1 lac has been withdrawn from his account. He immediately contacted the manager and informed him to block his card and in between again Rs. 1 lac was withdrawn from his account. When he saw the ATM card returned by the person, it was not his card but an international rupee Debit Card of SVT Cooperative Bank Ltd. and the name of the card holder was A.N.Sheikh Toppo Service. Then he came to know that he had been defrauded by the person who entered the ATM while he was trying to withdraw the amount. 3. The applicant saw the CCTV camera installed near Budhwari Bazar ATM and he came to know that the said person had committed fraud by changing the card of the applicant and they fled away in the car. The applicant lodged a complaint about the incident at Civll Lines Police Station Korba. On the basis of the said complaint, the police station in charge registered Crime NO. 412/2023 under Sections 420, 120-B and 34 IPC and after completion of investigation, the applicants were 3 arrested and charges were framed against the accused/applicant under Sections 420/34 and 120-B IPC. 4. So as to prove the guilt of the accused/applicant, the prosecution has examined 12 witnesses. Statement of the accused/applicant was also recorded under Section 313 of the Cr.P.C. in which he denied the charges leveled against him and pleaded his innocence and false implication in the case. 5. After hearing the parties, vide impugned judgment and order dated 4.12.2024, learned trial court has convicted the accused/applicant for the offence under Sections420/34 and 120-B IPC and has sentenced to undergo RI for 7 years and 6 months respectively and fine of Rs. 500/- on both counts, with default stipulations. This order was appealed by the applicant and in the appeal, learned appellate Court has confirmed the conviction and sentence awarded to the applicant. Hence, the present revision. 6. Counsel for the applicant submits that the order passed by the learned trial court is bad in law. He submits that the judgment of conviction and order of sentence passed by the appellate court is erroneous and therefore liable to be quashed. He submits that the appellate court has committed an error in not noticing that the complainant had complained of withdrawal of 2 tacs at once time from his account through single ATM but as per the bank rules, the withdrawn amount has been fixed at only Rs. 40,000/- in 24 hrs. and while withdrawing amount of Rs. 10,000/- from any ATM, one time password is sent to the mobile number registered in the account. 4 Hence, it has been wrongly proved by the prosecution that the amount of Rs. 2 lacs has been withdrawn from the ATM card in the same time period. Thus, the appellate court has not considered the fact that the prosecution witnesses ie. PW-2,3,4,5,6,7 & 8 have not supported the case of prosecution and have turned hostile. Lastly, he submits that the applicant is in jail since 11.09.2023 and thus, he had remained in custody for about 1 year and 8 months and therefore, he may be sentenced to the period already undergone by him/ 7. On the other hand, learned State counsel opposes the submission made by the counsel for the applicant and submits that from the material collected during the investigation, there is sufficient evidence available on record to frame charge for the alleged offence under Sections 420/34 and 120-B of the IPC. It is submitted that 23 ATM cards were seized from the applicant. He submits that the applicant is having three criminal antecedents against him for similar offences and therefore there is no merit in the petition, and the same is liable to be dismissed. 8. Heard learned counsel for the parties, and perused the material available on record. 9. The accused applicant has been charge-sheeted for the offences punish able under Sections 420/34 and 120-B I.P.C. 14. For constituting an offence under section 420 I.P.C. the ingredients of cheating are required to be fulfilled. The cheating has been defined in section 415 I.P.C. as under:-- "415. Cheating.--Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the 5 person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to "cheat"." 7. Looking to the facts and circumstances of the case, since applicant has already suffered jail sentence of 25 days out of three months jail sentence, he is sentenced for the period already undergone by him. 10. Complainant (PW-1) has stated that when he was shown the photograph of the applicant, he identified him. On 11.09.2023, when he had gone to withdraw money from the ATM and it was showing some error, at that point of time, the applicant entered and asked him that the ATM machine was not working. Thereafter he asked him that he will try to withdraw and the complainant gave his card to him which was fraudulently exchanged by him with another card. Thereafter, he went away. After a while, when the complainant again tried to withdraw from the ATM machine, he found that the card has been exchanged by him and immediately thereafter, he received SMS that 2 lacs has been withdrawn from his account. He then contacted the Bank Manager and his account was blocked. 11. Lalit Kumar (PW-3) has stated that on the date of incident, he was also in the queue outside the ATM machine and one person who had covered the face was also standing there. When the complainant inserted his card and it was showing error, the person standing there asked him as to whether he was having any problem thereafter he tried to help him and in between he left the card which he was having and took the card of the complainant which was later on seen by the complainant. Shiv Murat (PW-5) has stated that CCTv was installed in 6 his shop and therefore the police persons came to him and seized the CCTv footage. Similar statement has been given by Jitendr Kumar Gupta (PW-6), Krishna Kurre (PW-7), Supriya Shriwas (PW-12). 12. After going through the material on record and the evidence of the witnesses (ie. PW.-2,3,4,5,6,7 & 8) which establishes the involvement of the accused/applicant in the crime in question. The finding recorded by the two Courts convicting and sentencing the applicant under Sections 420/34 an 120-B of the IPC, is well merited and is a finding of fact based on the evidence available on record, it is neither perverse nor contrary to the record and I do not find any perversity in the said finding. However, considering the fact that the applicant remained in jail since 11.09.2023 and therefore, the sentence awarded to him of 7 years is reduced to that under 5 years. As such, affirming the conviction of the applicant under Sections 420/34 and 120-B of the IPC, he is sentenced with imprisonment of 5 years from that of 7 years. However, the sentence of fine imposed by the trial Court shall remain intact. 13. The criminal revision is partly allowed to the extent indicated herein-above. Sd/- (Arvind Kumar Verma) Judge SUGUNA DUBEY Digitally signed by SUGUNA DUBEY Date: 2025.05.23 17:19:05 +0530