Calcutta HC Acquits Two Men In ATM-Card Fraud Case, Citing 17 Unaccounted Cards And Unsealed Seizures

The prosecution alleged that the petitioners swapped the complainant’s ATM card at an ATM booth and used it to make unauthorised withdrawals and a gold purchase totalling ₹65,300.

The complainant discovered the transactions the next day but lodged her written complaint on 16 October 2019. The trial court convicted the petitioners under Sections 419/120B and 420/120B IPC; the appellate court affirmed the conviction and sentence.

In revision, the petitioners challenged, among other things, the handling and custody of seized articles, the admission of documentary and electronic records, the identification evidence, the treatment of co-accused Nabi Sk., and reliance on alleged criminal antecedents.

The Court applied Sections 397 and 401 CrPC, which permit revisional intervention where findings disclose material illegality or perversity, despite the usual restraint against reappreciating concurrent findings.

It relied on Sections 61, 64 and 65 of the Indian Evidence Act, 1872, concerning proof of documentary contents and the conditions for admitting secondary evidence; Sections 65A and 65B, including the certificate requirement for computer outputs; and Section 2A of the Bankers’ Books Evidence Act, 1891, concerning proof of bank entries.

The Court also applied the principles that a reliable chain of custody is necessary to establish the identity and integrity of seized articles; prior exposure of suspects may undermine the evidentiary value of a TIP; suspicion cannot substitute for proof; and the prosecution bears the burden of proving guilt, with antecedents not constituting substantive proof of the charged offence.

It referred, among other authorities, to Mohd. Aman v. State of Rajasthan, State of Rajasthan v. Daulat Ram, Anvar P.V. v. P.K. Basheer, LIC of India v. Ram Pal Singh Bisen, Shaikh Umar Ahmed Shaikh v. State of Maharashtra, and Sanjaysinh Ramrao Chavan v. Dattatray Gulabrao Phalke.

The Court found that the Investigating Officer had no Malkhana register to establish safe custody, the seizure witnesses described the articles as unsealed, a container bore a manufacturing date later than the alleged seizure, and 17 of the 26 reportedly recovered ATM cards were unaccounted for. It treated these as foundational defects rather than minor investigative lapses.

It further held that the photocopied invoices lacked a foundation for secondary evidence, while the bank and transaction records lacked the required statutory certification; marking them as exhibits did not prove their contents.

The complainant’s admission that the accused had been shown to her at the police station, together with the conflict between the Magistrate’s testimony and the TIP record, made the identification evidence unsafe.

The Court also found impermissible reliance on alleged antecedents and an improper shift of the burden to the accused.

Taken cumulatively, these defects rendered the concurrent findings perverse and justified revisional intervention.

It directed that they be released forthwith unless wanted in another case and that any fine paid be refunded.