IMPORTANT POINTS
(1) Bail is not a licence for committing any number of crimes—Though bail is related to liberty of a person, misuse of liberty is not justifiable—Crimes which are not targeted against an individual, but perpetrated against society must be viewed quite differently.
(2) Right to claim bail under section 436 of Cr.P.C becomes circumscribed when an accused repeatedly commits bailable offences.

ORDER

Sreenivas Harish Kumar, J.—This is a petition under section 439 Cr.P.C. Initially the respondent police registered an FIR in Cr.No.49/2020 for the offences under Sections 66C and 66D of the Information Technology Act (for short referred to as ‘I.T Act’) and Section 420 of Indian Penal Code (for short referred to as ‘IPC’). In the charge sheet, the respondent invoked the offences punishable under Sections 66(C) and 66(D) of I.T. Act only.

2. The background is :

On 25.2.2020, a woman by name Pavithra D, made a report to the respondent police that in between 21.58 and 22.05 hours on 24.2.2020, she received messages to her mobile phone about withdrawal of Rs.10,000/- nine times from her bank account. Having found totally an amount of Rs.90,000/- being withdrawn from her bank account, she went to the bank on 25.2.2020 and made an enquiry. She learnt that an amount of Rs.90,000/- had been withdrawn from her bank account at an ATM counter by somebody.

3. The Sessions Court rejected the bail application of the petitioner mainly on the ground that the offence under Section 420 of IPC is non bailable and that the petitioner is found to have involved in as many as 60 similar offences.

4. The main thrust of argument of Sri Hasmath Pasha, the learned Senior Counsel appearing for the petitioner is that the offences under I.T. Act are bailable, for this reason the petitioner is entitled to be released on bail as a matter of right; and that the contents of FIR do not constitute an offence under Section 420 of IPC. Delving on these points, he further submitted that the allegations against the petitioner are that she collected data of the ATM card of the first informant by fixing a device called skimmer to ATM, prepared a forged ATM card and withdrew money from the first informant’s bank account. These allegations do not constitute an offence of cheating, for there was no dishonest inducement of the first informant by the petitioner; therefore only offences that can be invoked are Sections 66C and 66D of I.T. Act, and they are bailable. He submitted that the petitioner is a foreigner and staying in Bengaluru on a student Visa; the police have seized her passport and Visa, and for this reason there cannot be any apprehension that she will fly away to her native country. She is ready to co-operate with the police for completing the investigation; and therefore by imposing stringent conditions, bail may be granted.

5. The Government Pleader submits that the petitioner is involved in about 60 cases of similar nature. FIRs have been registered against her and other accused at various police stations for the same offence. She is a habitual offender and if bail is granted she will resort to committing the same offence once again and hence there are no grounds for granting bail. He also submits that there are materials indicating that the offences either under section 420 or section 468 of IPC can be invoked to the present set of circumstances. In this regard, he submitted that collection of data from the ATM cards deceptively by fixing a device to the teller machine is nothing but cheating, the offences of this nature affect the banking system. He pleaded for dismissal of the petition.

6. It is alleged against the petitioner that she withdrew an amount of Rs.90,000/- from the bank account of the first informant by using a forged ATM card. She made use of a device called ‘Skimmer’ and a camera for perpetrating the crime. The police have seized a camera, a skimmer and other materials from the petitioner.

7. Skimmer is used for collecting the data stored in an ATM card and the camera, for capturing the password, when the account holder operates the teller machine using his card. The data then collected is used for forging the cards to be used for withdrawing the money from the accounts of the customers of the bank without their knowledge. Perpetration of crime in this manner fits into ingredients of Section 468 of IPC, for the genuine card