Joymalya Bagchi, J. - (1.) The appeal is directed against the judgment and order dated 30th June, 2015 and 1st July, 2015 passed by the learned Additional District and Sessions Judge, 2nd Fast Track Court, Bichar Bhawan, Calcutta in Sessions Case No. 54 of 2010 and Sessions Trial No. 47(4) of 2013 convicting the appellant for commission of offence punishable under Sections 467/468 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for 10 years and to pay fine of Rs. 50,000/- in default to undergo rigorous imprisonment for six months for the offence punishable under Section 467 of the Indian Penal Code and sentencing him to suffer rigorous imprisonment for seven years and to pay fine of Rs. 50,000/- in default to suffer rigorous imprisonment for a period of six months for the offence punishable under Section 468 of the Indian Penal Code, both the sentences to run concurrently.
(2.) Prosecution case, as alleged, against the appellant is to the effect that on 23.02010 a complaint was lodged before the Deputy Commissioner of Police (Detective Department), Lalbazar by Saibal Sen, P.W.1, an employee of I.C.I.C.I. Bank who alleged that the bank had installed electronic data capturing (E.D.C.) machines at different outlets for purchase of articles like jewellery, mobile phones etc. on credit. These machines being dishonestly used by unscrupulous persons by using counterfeit credit cards containing valid encrypted information of foreign cards to purchase articles. As the cards contained valid encrypted information, the transactions were automatically processed and the sales were effected. I.C.I.C.I. bank paid the amount to the sellers on the next date of purchase and debited the amount from the foreign card holders. It was subsequently found that the said card holders had not come to India at the material point of time and the foreign bankers complained to I.C.I.C.I. Bank about the fraudulent debits made on the account of their customers through the E.D.C. machines provided by I.C.I.C.I. Bank etc. On checking the identification proof, it was found that forged driving license were used as identification proof for the purpose of effecting fraudulent purchases through E.D.C. The aforesaid information was registered as Shakespeare Sarani P.S. Case No. 78 dated 23.2010 under Sections 120B/467/468/201/419/420/471 of the Indian Penal Code and section 14 of the Foreigners Act and the investigation was entrusted to S.I., S. Banerjee of Detective Department, Lalbazar. In the course of investigation, the appellant and other accused persons viz., Peter Orenubi Oluwagbenga, Benson Oladetan Adams, Leena Orenubi, Manish Agarwal @ Durjoy Roy @ Md. P. Gupta @ Sikander Sayeed and Ankit Shaw @ Ankit Jaiswal @ Eishu @ Md. Firojuddin were arrested. Pursuant to the statement of the appellant, raid was held at premises No. 188/2 Picnic Garden Road, Calcutta-700089 and 12 number of credit cards of different banks containing magnetic strips and a card reader writer machine were seized under a seizure list. Other seizures were also effected and in conclusion of investigation, charge sheet was filed against seven accused persons including the appellant under Sections 120B/467/468/201/419/420/471 of the Indian Penal Code and section 14 of the Foreigners Act. Charges were framed under Sections 120B/467/468/471 of the Indian Penal Code and section 14B of the Foreigners Act against the appellant; under Sections 120B/467/468/474/471 of the Indian Penal Code and section 14B of the Foreigners Act against Benson Oladetan Adams; under Sections 120B/467/468/474/420/471 of the Indian Penal Code against Leena Orenubi; under Sections 120B/467/468/471 of the Indian Penal Code against Egbe Dokum James Taiwo @ Joseph Albert John; under Sections 120B/467/468/474/420/419/471 of the Indian Penal Code against Manish Agarwal @ Durjoy Roy @ M. P. Gupta @ Sikdander Sayeed; under Sections 120B/467/468/420/471/419 of the Indian Penal Code against Ankit Shaw @ Ankit Jaiswal @ Eishu @ Md. Firojuddin; under Sections 120B/467/468/420/471 of the Indian Penal Code against Manish Surajmal More. The appellants pleaded not guilty and claimed to be tried. In the course of trial, the prosecution examined 11 witnesses and exhibited number of documents including the opinion of the Expert. The defence of the appellant was one of innocence and false implication. In conclusion of the trial, the trial judge by the judgment and order dated 30th June, 2015 and 1st July, 2015 convicted and sentenced the appellant, as aforesaid. The other accused persons were, however, acquitted of the charges levelled against them.
(3.) Mr. Kabir, learned Advocate appearing for the appellant argued that the ingredients of the alleged offences have not been proved beyond reasonable doubt. He submitted that the prosecution evidence as to place of seizure itself is confusing. While it is stated in the seizure list as well as in the deposition of P.W.11 that the seizure was effected from the third floor of the premises No. 188/2, Picnic Garden Road, in cross-examination the said witness deposed that the premises was a G+2 building. Arrest of co-accused Leena Orenubi is also shrouded in mystery. Although memo of arrest shows that she had been arrested along with the appellant at the Airport, P.W.11 deposed that she was arrested at the place of seizure namely, premises No. 188/1 Picnic Garden Road. The aforesaid contradictions clearly improbabilises the prosecution case as to seizure of the credit cards and the card reading machine from the possession of the appellant. He also argued that the opinion of P.W.10 that the seized credit cards were forged is inconclusive. No enquiries had been made from the foreign credit card companies with regard to the hidden number used on the credit card and, therefore, it cannot be said with certainty that the cards were forged. Hence, the prosecution case has not been proved beyond reasonable doubt.;