Order No.  19  dt.  10/04/2017

       The case of the complainant in brief is that the complainant had an account with o.p. bank being account no.912010040807989. the complainant found that in his account on 3.6.13 the amount was lying of Rs.1,80,797.80 and between 3.6.13 to 11.6.13 the complainant noticed that an amount of Rs.1,75,000/- was withdrawn through ATM by suing the card of the complainant. The complainant further stated that he was arrested on 31.5.13 and he was taken into police custody in connection with the case no.69/2013 u/s 420 IPC and he was in police custody for 14 days as per the order passed by Ld. ACJM Bidhannagar. After his release from the custody the complainant checked his account and found that only Rs.5779.80 was lying in his account. The complainant became astonished and he contacted the o.p. bank wherefrom he was provided with the statement of account which shows that the amount was withdrawn through ATM by using his PIN which the complainant did not disclose to anybody. In view of such fact the complainant prayed or direction upon the o.ps. to pay a sum of Rs.1,75,000/- along with compensation of Rs.50,000/- and litigation cost of Rs.10,000/-

            The o.ps. contested this case by filing w/v and denied all the material allegations of the complaint. It was stated that the complainant in the complaint petition has annexed a letter addressed to the I.C. Airport P.S. wherein he has himself stated that he had handed over all his belongings along with bank ATM cum Debit Card to one Mr. Sourav Sengupta and said Mr. Sourav Sengupta has not been made a party to this case and accordingly o.ps. prayed for dismissal of the case on that ground. The complainant has an account holder to o.p. bank and he was provided with an ATM cum Debit Card by o.p. no.2. As per the complaint petition the complainant was arrested by police authorities in connection with a criminal case u/s 420 IPC and by filing a letter he has admitted that just prior to his arrest on 31.5.13 the complainant, has handed over all his belongings to Mr. Sourav Sengupta and he has also admitted in the complaint petition that after his release from the custody on 13.6.13 the complainant did not get back his ATM cum Debit Card. Since the complainant did not maintain the confidentiality of the said card there is every possibility is that the complainant had shared his secret and confidential PIN with said Mr. Sourav Sengupta. The o.p. no.2 after getting notice of this case contacted the ATM  Cell and found that the transaction was successful and an amount of Rs.1,76,000/- was dispensed to the card holder. In view of such fact there was no deficiency in service on the part of o.ps. and accordingly o.ps. prayed for dismissal of the case.

            On the basis of the pleadings of parties the following points are to be decided:

1. Whether the complainant had the ATM cum Debit Card with o.p. bank.
2. Whether the complainant was arrested in connection with a criminal case.
3. Whether the complainant before his arrest handed over the card to any other person.
4. Whether there was any deficiency in service on the part of o.ps.
5. Whether the complainant will be entitled to get the relief as prayed for.

Decision with reasons:

            All the points are taken up together for the sake of brevity and avoidance of repetition of facts.

            Ld. lawyer for the complainant argued that the complainant is an account holder of o.p. bank and o.p. bank issued an ATM cum Debit Card and before his arrest the complainant noticed that in his account the amount was lying to the tune of Rs.1,80,797.80. After release from the custody while he checked the account he found that only an amount of Rs.5779.80 was lying in his account. Since the amount was withdrawn without the knowledge of the complainant therefore ld. lawyer for the complainant prayed for direction upon the o.p. bank to refund the said amount to the complainant along with other reliefs.

            Ld. lawyer for the o.ps. argued that the complainant himself admitted in the complaint petition that he was arrested in a case u/s 420 IPC and before his arrest he handed over the said card to one Mr. Sourav Sengupta. The complainant himself admitted the said fact in the complaint petition by annexing a letter addressed to I.C. Airport P.S. In the said letter he also accused Mr. Sourav Sengupta for not returning the said card along with other articles which were handed over to him before his arrest. Mr. Sourav Sengupta has not been made a party in this case. If Mr. Sourav Sengupta would have been made a party in this case the actual fact could have been ascertained. In view of  such fact since the bank after making the verification of the account found that through the ATM by using the said card the amount was withdrawn. Therefore o.ps. had no liability to refund the said amount and accordingly o.ps. prayed for dismissal of the case.

            Considering the submissions of the respective parties it is an admitted fact that the complainant had an account with o.p. bank. It is also an admitted fact that the complainant was arrested in a case and before his arrest he handed over his ATM cum Debit Card along with other articles to one Mr. Sourav Sengupta. After his release from the custody he requested Mr. Sourav Sengupta to return the said card along with other articles and the motor bike but he failed to return the same for which the complainant lodged an FIR against Mr. Sourav Sengupta at Airport P.S. In the FIR it was specifically stated that the complainant repeatedly requested Mr. Sourav Sengupta to return the amount of Rs.20,000/- which he had at the time of handing over the wallet to Mr. Sourav Sengupta as well as ATM card and the motor bike, for which said complaint was lodged. Considering the said fact coupled with the admission made by the complainant himself that he handed over the ATM card to a 3^rd party, the bank always gives instruction to the customers not to hand over the ATM card or PIN to any 3^rd party. But here in this case the complainant himself was at fault and he handed over the ATM card, perhaps he also disclosed his PIN to said Mr. Sourav Sengupta who by taking advantage of the distress condition of the complainant withdrew the money from his account. If such being the position, it is not possible for the bank to stop the operation of the said ATM card until  and unless the bank is informed to that effect prior to the using of the said card by any 3^rd party. Here in this case no such information was given to the bank and also from the materials on record it is found that the said Mr. Sourav Sengupta has not been made a party to ascertain the actual fact regarding the said withdrawal of the money from the o.p. bank, therefore we hold that the complainant has failed to prove the case against the o.ps. and there was no deficiency in service on the part of o.ps. and accordingly we hold that the complainant will not be entitled to get the relief as prayed for. Thus all the points are disposed of accordingly.

            Hence, ordered,

            That the CC No.67/2014 is dismissed on contest without cost against the o.ps.    

            Supply certified copy of this order to the parties free of cost.