Present       (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                     President

                    (2)     Smt. Karishma Mandal,

                              Member  

Date of Order :- 22.01.2016     

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite parties in Hindi. Hence the facts are being reproduced in Hindi for sake of originality which is as follows:-

1. दिनांक 12.01.2006 को बचा शेष राशि मो0 1,251.50(एक हजार दौ सौ एकावन रूपये  एवं पचास पैसा) मात्र ब्‍याज सहित दिलाया जाय  ।
2. वादी के खाते में जो माईनस कर मो0 22,798/-(बाईस हजार सात सौ अंठानब्‍बे) रूपये दिनांक 24.01.06 को चढ़ाया गया है उसे हटवाया जाय।
3. मानसिक परेशानी हेतु मो0 50,000/-(पचास हजार) रूपये, शारीरिक परेशानी हेतु मो0 25,000/-(पचीस हजार) रूपये एवं आर्थिक परेशानी हेतु 15,000/-(पन्‍द्रह हजार) रूपये मात्र भुगतान कराया जाय।
4. वाद व्‍यय के रूप में मो0 5,000/- (पाँच हजार) रूपये मात्र भुगतान कराया जाय।
5. भुगतान के तिथि तक मो0 12 प्रतिशत ब्‍याज का भुगतान कराया जाय।

2. The complainant has filed the complaint in Hindi. Hence the facts are being reproduced in Hindi for the sake of originality which is as follows:-

1. वादी का बचत खाता जिसका सं0 2741 प्रतिवादी के शाखा में था, जिसके एवज में वादी को ए0टी0एम0 कार्ड भी निर्गत किया गया था।
2. दिनांक 12.01.2006 को वादी ने प्रतिवादी सं0 1 के शाखा में जाकर अपना ए0टी0एम0 खोने की सूचना दी, जिस पर प्रतिवादी ने वादी को एफ0आई0आर0 करने की सलाह दी। चुकि वादी को रूपयों की आवश्‍यकता थी इसलिए वादी ने उसी दिन चेक से मो0 24,000/-(चौबीस हजार) रूपये मात्र भुगतान पाया, जिसके बाद वादी के खाता में शेष राशि मो0 1,251.50( एक हजार दो सौ एकावन) रूपये एवं पचास पैसा बच गया था।
3. वादी ने संबंधित थाना को सूचना दिया, जिस पर थाने ने वादी को शपथ पत्र पर अपना शिकायत करने के लिए कहा और वादी को फिर शपथ पत्र बनाने हेतु न्‍यायालय में जाना की आवश्‍यकता पड़ी, जिसके कारण न्‍यायालय से शपथ पत्र बनाकर थाने में एफ0आई0आर0 कराने एवं एफ0आई0आर0 प्राप्‍त कर बैंक को देने में थोड़ा विलंब हुआ।
4. दिनांक 24.01.2006 को वादी के खाते से उसके ए0टी0एम कार्ड के द्वारा मो0 9000/- (नौ हजार) रूपये एवं उसी दिन पुन: मो0 15,000/-(पन्‍द्रह) हजार रूपये मात्र का निकासी दिखाया गया और वादी के खाते में मो0 22,798.50(बाईस हजार सात सौ अंठावन) रूपये एवं पचास पैसा मात्र माईनस में डालकर भुगतान कर दिया गया। जबकि ए0टी0एम0 का नियम है कि किसी भी खातेधारी को एक दिन में मो0 15,000/-(पन्‍द्रह हजार) रूपये से अधिक का भुगतान नहीं किया जायेगा और प्रतिवादी के बैंक या ए0टी0एम0 में यह भी नियम नहीं है कि खातेधारी के खाता में पैसा नहीं रहने पर और बिना किसी आग्रह या आदेश का खातेधारी को उन रूपयों का भुगतान किये जाये जो खातेधारी चाहे। यानि किसी भी विधिक दृष्टिकोण से बिना खाते में राशि के भुगतान करना विधिक नहीं है।

3. The Opposite Party no. 1 and 2 in their written statement has submitted as follows :-

1. Apparently the complainant has filed the instant complaint petition being aggrieved by the deduction of Rs. 24,000/- from the account of the complainant.
2. The complainant had opened a saving Bank Account in the Canara Bank, Khagaul Branch and requested the Manager for issuance of ATM Card.
3. With regard to the statement made in Paragraph no. 1, it is respectfully and humbly submitted that the same is matter of record inviting no comments. The complainant had been issued ATM Cum Debit Card No. 4214588609004104 on 22.12.2005 for saving Bank Account No. 2741 valid from 01.09.2005 to 01.09.2010.
4. With regard to the statement made in Paragraph no. 2 it is respectfully and humbly submitted that as the complainant did not come forward on 12.01.2006 to inform to the Bank about the loss of his ATM Card, so opposite party parties were not aware of it. If the complainant would have approached to the Bank on 12.01.2006, the ATM could have been “ HOT LISTED ”. Hot listing of ATM Card is done by Bank, only after obtaining an application from the parties that he/she has lost his / her ATM card. Hot listing means restricting the further operation through concerned ATM card.
5. It is respectfully submitted that the complainant from his saving Bank Account no. 2741 had withdrawn cash amount of Rs. 24,000/- on 12.01.2006 through his cheque leaving balance of Rs. 1251.50/- in his account.
6. It is relevant here to state that the complainant had withdrawn cash through ATM using ATM Cash point of UTI Bank on two different dates as under Rs. 9,000/- on 11.01.2006 and Rs. 15,000/- on 12.01.2006. ( Annexure – A )
7. With regard to statement made in Paragraph no. 3, it is respectfully submitted that same is the matter of record inviting no comments.
8. With regard to statement made in Paragraph no. 4, it is respectfully submitted that as per rules, account should have been debited either on the same day or on the next working day but due to error in downloading, the amount already withdrawn of Rs. 9,000/- dated 11.01.2006 as well as Rs. 15,000/- dated 12.01.2006 had been debited on 24.01.2006 only after setting right the error in downloading. As a sum of Rs . 24,000/- was already withdrawn by the complainant through a self cheque on 12.01.2006, leaving balance of Rs. 1251.50/-. So after debiting further amount of Rs. 9,000/- at Rs. 12,000/- for dated 11.01.2006 and dated 12.01.2006 respectfully, account went in debit showing debit balance of Rs. 22,848.50/- ( i.e. Rs. 22,848.50/- ) as on 24.01.2006. ( Annexure – B )
9. With regard to statement made in Paragraph no. 5, it is respectfully submitted that the ATM allowed withdrawal as per rules as withdrawals was permitted within a limit of Rs. 15,000/-. Amount withdrawn on two different dates as Rs. 9,000/- on 11.01.2006 and Rs. 15,000/- on 12.01.2006.
10. With regard to statement made in Paragraph no. 6, it is submitted that as amount was withdrawn from ATM on two different dates amounting to Rs. 24,000/- but after seeing full balance in his account on 12.01.2006, the complainant himself withdrawn through his self cheque, which seems to be intentional.
11. With regard to statement made in Paragraph no. 7, it is respectfully submitted that ATM transaction can take place only by using ATM Code with proper PIN. PIN is a confidential code allotted to the card holder of four digits in a sealed packet. Unless proper PIN is known to other, transaction through allotted ATM card is affected, transition may be treated as proper and genuine.
12. With regard to statement made in Paragraph no. 8, it is respectfully submitted that the complainant has been responsible for all acts as he himself has withdrawn amount from ATM of other Bank in two different dates i.e. Rs. 9,000/- on 11.01.2006 and Rs. 15,000/- on 12.01.2006. The complainant has also withdrawn a sum of Rs. 24,000/- through a self cheque on 24.01.2006 which is not disputed.

4. The Complainant in his Rejoinder has submitted as follows :-

1. In respect to Paragraph no. 1 to 4 of the written statement filed by the opposite party no. 1 and 2 ( Canara Bank and its Officials ) it requires no comment.
2. In respect to paragraph no. 5 of the written statement the complainant has to say that the statement, which has been by the opposite party are quite wrong. Only to save their skins, such types of statement have been given by them.

The real fact is this, that the complainant, when came to know that his ATM Card bearing no. 4214588609004104 has been lost, then he at once had given information to Branch Manager, E.C. Branch Canara Bank Khagaul on 12.01.2006.

3. The complainant had withdrawn Rs. 24,000/- through his cheque leaving balance of Rs. 1251.50/- in his account on 12.01.2006.
4. The statement given by the opposite party in paragraph – 7 of the written statement is quite wrong. It is surprisingly enough that while his ATM Card had been lost and he has given information, the Bank Authority in this respect on 11.01.2006, then question of use of ATM by the complainant does not arise at all. Because he had already given information to the Bank authority then how he will withdraw the amount from the Bank through ATM.

So the complainant did not use his, ATM and never has withdrawn amount of Rs. 9,000/- on 11.01.2006 and Rs. 15,000/- on 12.01.2006. It is the bank employee, who have managed to withdraw the said amount. They had got knowledge about the lost of ATM card on 11.01.2006 and on that day the said amount have been have been withdrawn. It is a matter of great surprise.

5. The complainant is a businessman, why he will do such type of illegal Act. That’s why he had withdrawn cash amount of Rs. 24,000/- on 12.01.2006 through cheque on account of some business work.
6. In respect to paragraph no. 8, of the written statement, it requires no comment.
7. In respect to paragraph no. 9 of the written statement the complainant has to say that as per rule, account should have been debited either on the same day or the next working day. It is relevant to mention herewith that the amount already withdrawn of Rs. 9,000/- on 11.01.2006 as well as Rs. 15,000/- on 12.01.2006, had been debited on 24.01.2006. This action of the bank is doubtful. Only to state that due to error in downloading the aforesaid amount it has been debited on 24.01.2006 seems to be quite impossible. The bank authority only to save their skin, has given such type of statement. It has got no leg to stand in the eye of law.
8. In respect to paragraph 10 of the written statement filed by the opposite parties the complainant has to say that there in some rules and regulations for using of ATM cards. As per rule one can withdraw maximum of Rs. 15,000/- at time that’s why some one has managed to withdraw the amount on two different dates as Rs. 9,000/- on 11.01.2006 and Rs. 15,000/- on 12.01.2006.
9. In respect of paragraph 11 of the written statement the complainant has to say that the complainant had not used ATM card on 11.01.2006 and 12.01.2006 he had withdrawn Rs. 24,000/- amount through cheque by himself.
10. In respect to paragraph 12 of the written statement the complainant has to say that he had informed the bank authority about missing of his ATM card on 12.01.2006. he had also given full details of his ATM card. He has also stated its PIN code to the bank authority. Thus, the bank’s authority had knowledge about the PIN code number of the complainant had given all the papers in respect to ATM card including PIN code no. to the bank authority.
11. In respect to paragraph no. 13 of the written statement, the complainant has to say that it is wrong to say that the complainant had withdrawn the amount on different date through ATM. It is true that the complaint had withdrawn Rs. 24,000/- through his cheque. From the above facts and circumstance it is apparent that the bank authorities are the responsible for transaction of the amount through the ATM because the complainant had already informed his Bank ATM on 12.01.2006 ( about missing of his ATM ). It was duty to freeze that number of the complainant.
12. The complainant had requested the bank authorities several time to take steps in this matter but they never entertained his complainant. They had stated to lodge FIR then came with  the copy of the FIR when the complainant went to lodge FIR then the police asked him to sworn affidavit in this respect then they will registered FIR. Later on the complainant had sworn affidavit then FIR has been lodged. Then the complainant had given copy of FIR to the Bank authority. It is relevant to mention herewith that prior to lodging FIR the complaint had already given information to the bank authority on 12.01.2006 and he had given full detail of the ATM also.
13. On different dates the complainant had filed several letter to the bank authorities in this respect but all his efforts became fruitless. ( Annexure – 1 series )
14. It is relevant to mention herewith that the complainant had withdrawn Rs. 24,000/- from his bank through the cheque then only balance in his account was 1,251.50/- then how he can withdraw the amount Rs. 15,000/- through ATM on that very date. It is case of doubtful. Thus it is apparent that it is a case of conspiracy. Without the help of bank employees, no one can do such type of mischievous work.
15. It is also relevant to mention herewith that without the permission of the account holder of the bank, the bank has no power to put or transfer the amount of fixed deposit in saving account. But that has been done in the case of the complainant without taking his permission, the bank has transferred the amount of fixed deposit of the complainant in his saving Banks Account.
16. It is relevant to mention herewith that from the passbook it appears that Rs. 9,000/- had been withdrawn on 24.01.2006 and Rs. 15,000/- has been withdrawn on the same day i.e. on 24.01.2006 while the complainant had withdrawn the amount of Rs. 24,000/- by cheque on 12.01.2006. it means after withdrawal of the said amount i.e. Rs. 24,000/- balance became 125/-. Then the question of withdrawal Rs. 9,000/- + 15,000/- after 12.01.2006 does not arise at all. ( Annexure – 2 )

The facts asserted by the parties have been narrated in the forgoing paragraphs. However in order to record findings certain facts are being narrated even at the cost of repetition.

It is the case of the complainant that on 12.01.2006 he informed the opposite party no. 1 ( Khagaul Branch ) about the missing of his ATM Card and thereafter on the same day he has withdrawn Rs. 24,000/- from his account leaving behind Rs. 1251.50/-. It is the grievance of the complainant that on 24.01.2006 Rs. 9,000/- and Rs. 15,000/- were shown to be withdrawn through ATM and the bank authority has disbursed the aforesaid amount after showing minus Rs. 22,798.50/- while the aforesaid amount could not be withdrawn as the maximum withdrawal through the ATM is Rs. 15,000/-.

Opposite party no. 1 and 2 have filed written statement denying the fact that the bank was informed by the complainant about the loss of the ATM on 12.01.2006. It has been further asserted by opposite parties that had they been informed about the loss of the ATM on 12.01.2006 the ATM could have been HOT LISTED. It has been further asserted by the opposite parties that due to error in downloading the amount withdrawn i.e. Rs. 9,000/- on 11.01.2006 and Rs. 15,000/- on 12.01.2006 by the complainant had been debited on 24.01.2006 only after setting right the error in downloading.

Thus opposite parties have denied to have been received information by the complainant about theft of the ATM.

It appears from the record that the complainant had given information to Khagual Police which has been registered as SDE No. 378 dated 13.04.2006. In this application he has not written the exact date about missing the ATM. Apart from it, in rejoinder it has been asserted by the complainant that complainant never used his ATM on 11.01.2006 and 12.01.2006. The complainant has asserted that on 11.01.2006 Rs. 9,000/- and on 12.01.2006 Rs. 15,000/- has been withdrawn by the bank employee while the bank has asserted that on 12.01.2006 the complainant had not informed the bank in order to HOT LIST the aforesaid ATM. It is surprising that it is the statement of complainant that on 12.01.2006 he had informed the bank authority that it means that on 11.01.2006 the withdrawal was done by the complainant himself because on that days aforesaid ATM has with him and bank was not informed on that day i.e. 11.01.2006 as per statement of the complainant itself. Apart from the aforesaid facts it further transpires that complainant has also lodged F.I.R. with Police. The result of investigation is also not known to us. The aforesaid fact raises the doubt and it also encompass the disputes facts which cannot be decided in this Forum.

Therefore this case is dismissed.

Member                                                                                      President