Karnataka

StateCommission

A/73/2018

Kotak Mahindra Bank Ltd. - Complainant(s)

Versus

K.Seetharam Bhat - Opp.Party(s)

K.V.Sathish

14 Jan 2022

ORDER

BEFORE THE KARNATAKA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, BANGALORE

 

DATED THIS THE 14^TH DAY OF JANUARY 2022

 

PRESENT

 

HON’BLE Mr. JUSTICE HULUVADI G. RAMESH    : PRESIDENT

MR. K.B. SANGANNAVAR                                 : JUDICIAL MEMBER

MRS. DIVYASHREE M.                                     : MEMBER

 

Appeal Nos. 2496/2017, 2497/2017 & 73/2018

 

Appeal No.2496/2017 The Chief Manager Karnataka Bank Ltd. Kodialbail Branch, Kodialbail Mangaluru – 03   Karnataka Bank Ltd. Head Office, Near Pumpwell Mangaluru – 03 Rep. by its Chairman & MD   (By Sri. Y.V. Parthasarathy)	……Appellants
Appeal No.2497/2017 The Chief Manager Karnataka Bank Ltd. Kodialbail Branch, Kodialbail Mangaluru – 03   Karnataka Bank Ltd. Head Office, Near Pumpwell Mangaluru – 03 Rep. by its Chairman & MD   (By Sri. Y.V. Parthasarathy)	……Appellants
Appeal No.73/2018 Kotak Mahindra Bank Ltd. SCS Hospital Bendoor, Mangalore 02 Rep. by its Chief Manager   Kotak Mahindra Bank Ltd. Registered Office: 27BKC C-27, G-Block, Bandra Kurla Complex Mumbai, Maharashtra 400 051 Rep. by its Chairman & Managing Director   (By Sri. Y.V. Parthasarathy) V/s	……Appellants
K. Seetharam Bhat S/o. K. Ganapathi Bhat R/at ‘Anuraga’ House Sarve Post, Munduru Village Taluk 574 202   Respondent is common in all these appeals.   (By Sri. Udaya Prakash Muliya)	..…Respondent

C O M M O N    O R D E R

 

BY MR. K.B. SANGANNAVAR, JUDICIAL MEMBER

These appeals are filed under Section 15 of Consumer Protection Act, 1986 by OPs in C.C.No.12/2016, 11/2016 and13/2016 aggrieved by the order dated 30.10.2017 passed by Dakshina Kannada District Consumer Disputes Redressal Forum, Mangalore (for short District Forum and the parties as arrayed in consumer complaints).

2. In first two appeals, parties are common and in the 3^rd appeal complainant is common, while bankers are different.  Since, cause of action to raise consumer complaints under Section 12 of Consumer Protection Act, 1986 being common and the decision taken by District Forum also being similar are taken up together to determine  in these appeals under a common order.
3. The brief facts in CC.No.12/2016 is that complainant maintained NRE SB account joint with his wife Smt. Anuradha Bhat since 1982 and other deposits in the name of family members.  On 25.06.2015 he was shocked to receive an intimation from OP No. 1, Puttur Branch about debiting of Rs.5,72,000/- from his account though there was no request by him for such transfer of funds.  When he contacted OP bank over telephone and requested to reverse the transaction, OP No.1 apologised trough e-mail for their negligent act stating that the debit information was meant for other customers.  He later verified with the bank statement of accounts of himself and his wife and son at Puttur as well as Kodialbail Branch, Mangalore on suspicion, to his utter shock and dismay came to know that a sum of Rs.2,51,000/- was debited in favour of M/s.Ridhi-Sidhi Enterprises from his NRE Account and a sum of Rs.80,000/- was debited on 20.06.2015 in favour of some Tuishimh Hungyo from his NRO account which is never requested by him for such transfer.  Initially OP No. 1 promised to correct by debiting the account, but, failed to keep up such promise.
4. In C.C.No.11/2016 complainant alleged that he maintained NRE SB account since 1982 and deposits in the name of his family members.  On 25.06.2015 he was shocked to receive an intimation from OP No.1 Puttur Branch about debiting of Rs.5,72,000/- from his account though there was no request for such transfer of funds.  When over telephone contacted OP bank and requested to reverse the transaction, OP No.1 apologized through e-mail for their negligent acts stating that debit information was meant for other customers.  As complainant residing at Oman, his wife Anuradha Bhat and son Mr. Raghavendra Trivikram verified bank accounts on suspension and to his utter shock and dismay, came to know that a sum of Rs.2,89,000/- was debited on 18.06.2015 in favour of Ridhi-Sidhi Enterprises from his account.  As the request for correcting the debiting of the amounts was initially promised by OP No.1, was not complied even after legal notice on 10.12.2015.  As per KYC guidelines issued by RBI, the OPs were duty bound to update details of complainant once in two years, but, they have been totally negligent in doing so and that there is deficiency in service on the part of OPs.
5. In C.C.No.13/2016 as stated that he is residing at Oman and requested his wife and son Mr. Raghavendra Trivikram at Puttur to apply for the bank Statement of his accounts maintained at Karnataka Bank and also OP to verify as to the safety of his accounts, but, to his shock and dismay he noticed Rs.3,01,000/- was debited on 24.06.2015 in favour of some Aysha Garments from his NRO joint account, though there was no such request made by complainant for such transfer.  In this regard several requests and representations were made to OP for reversing the transaction as there was no response from OP he raised the consumer complaint.
6. In all the three complaints complainant caused legal notice dated 26.11.2015, 10.12.2015 and 06.11.2015 respectively was not complied with. 
7. OPs contested the complaints have submitted their version admitting NRE SB account and NRO SB account maintained by complainant and his wife in their bank, but, denied that any shock to the complainant on transfer of Rs.5,22,000/- on 25.06.2015 and denied alleged apology through e-mail by employee of OP No. 1 bank and denied transfer of Rs.2,51,000/- on 18.06.2015 in favour of Ridhi-Sidhi Enterprises, Rs.80,000/- in favour of Tuishimhor Hungyo on 20.06.2015 and Rs.2,89,500/- on 18.06.2015 in favour of Ridhi-Sidhi Enterprises from his NRE account, contending that immediately after communication from complainant the concerned branch of OPs have approached jurisdictional police station to lodged complaint with regard to the alleged fraudulent transaction.  The police have refused stating that complaint has to be lodged by complainant, since complainant is alleging fraudulent transaction and Complainant is the alleged aggrieved person.  Accordingly, OP No. 1 has intimated complainant to co-operate with the bank and to lodge the necessary complaints before the police station with an intention to find out the genuineness of the grievances and also to recover said amount if really the said amount transfer was fraudulent.  OPs have executed both the money transfer in good faith based on the duly signed and scanned letter received by mail from complainant’s registered e-mail ID after verifying the signature with bank records.
8. In so far as CC.No.13/2016 OP filed version contending that complainant is an NRO and NRE SB account holder and expressing ignorance as to the alleged with Karnataka Bank of complainant. There were multiple requests by the complainant’s e-mail ID on 22.06.2015 at 13:15 hrs. amended at 14:38 hrs. and another request at 18:14 hrs. and as the requests were not convincing and satisfactory, branch decided to get confirmation of the same and OP contacted the phone numbers of complainant available with bank and both mobile and land line, but, there was no response from complainant.  After all such steps were taken by branch Mrs. Flavia Moras, who is financial advisor of complainant contacted branch to enquire why the fund transfer did not take place as per e-mail request.  She confirmed that she had received mail from complainant.  When branch explained about the attempts made to contact the complainant with the available phone numbers, she gave new number and after contacting the complainant putting him on line for the bank Manager to talk, the OP Branch forwarded all e-mails received by it to complainant.  At that time speaker at the other end, that is the complainant, confirmed that he had sent the mail.  However, on 22.06.2015 when all this happened the time was over for transferring the funds.  On 23.06.2015 fresh request was received from complainant’s email ID to transfer funds to one Vivek Singh having account with Dena Bank.  Though bank complied with the request, the money did not get transmitted as the IFSC Code was not correct.  The OP branch e-mailed complainant informing this failure of remittance.  Revised email was received from complainant’s email ID requesting the bank to remit Rs.3,01,000/- to Aisha Garments at HDFC Bank, Delhi Branch account.  On 24.06.2015 bank executed this transaction at 17:32 hrs, SMS was sent to the registered mobile number.  On 26.06.2015 bank received email from another email ID stating that email ID of the complainant, earlier mentioned had been hacked.  Immediately, OP alerted HDFC Bank about this and emails received by the Bank and its confirmation by complainant when contacted through Mrs. Flavia Moras, and scanned copy of signed letter of complainant which were enclosed to emails requesting for fund transfer are circumstances which prevailed with OP for action upon the email instructions.  Thus, bank acted bonafide and with due care and caution.  There is no deficiency in service on the part of OPs.
9. In all the above three complaints OPs contested and denied certain allegations with regard to deficiency in service and sought for dismissal of complaints.
10. In view of rival contentions of the respective parties the District Forum below received affidavit evidence of complainant as CW-1, answered the interrogatories served on him and received Ex.C1 to C9, in C.C.No.12/2016 and 11/2016 each and in C.C.No.13/2016 Ex.C1 to C8.  On the contrary received evidence of RW-1, answered interrogatories served on him and received e-mail communication between complainant and OP as Ex.R1. 
11. On holding summary enquiry the District Forum below appreciating the materials recorded affirmative finding on the point of deficiency in service on the part of the OP Bankers, in all the three complaints,  thereby directed OPs jointly and severally do pay Rs.3,31,000/-, 2,89,500/- and Rs.3,01,000/- along with interest at the rate of 8% p.a. from the dates of debiting the said amount till the date of payment and also do pay Rs.35,000/- and Rs.10,000/- in each of the case as compensation and costs of the litigation respectively within 30 days from the date of receipt of these orders.
12. Aggrieved by the above such orders, OPs are now in these appeals contending that when the fraud is alleged the proper forum for getting any relief is before a civil court and not the consumer forum.  The Forum below did not get jurisdiction to entertain the complaints and erred is contrary to the law.  The OPs were duly acted upon the instructions given by complainant on 18.06.2015, 20.06.2015.  OPs acted upon the repeated messages from his e-mail account and also a letter in writing requesting the bank to transfer funds which cannot be said deficiency in service on the part of OP/bank.  No charges are leveled against the appellants by the police authorities which leads to a clear conclusion that the appellant has no role to play in the alleged fraudulent transaction.  The allegations made by the complainant were very serious and there is an allegation of “Cyber Fraud”.  Question of having summary trial does not reveal true facts in the case and the matter has to be referred to a competent civil court.  The District Forum below erred in coming to the conclusion that there is deficiency in service on the part of the OPs and the impugned order passed by District Forum in all the three complaints needs to be set aside as not maintainable under Consumer Laws and sought dismissing of the complaints.
13. The commission heard LCs on record for the respective parties in all these appeals and we have gone through the impugned order passed by the District Forum in all the three complaints and we also examined the enquiry files. 
14. Now we have to decide whether Consumer complaints with allegation of deficiency in service on the part of OPs as found from complaint allegations are maintainable under consumer laws ? And to decide whether Forum below has committed errors  in passing the impugned orders for the grounds set out in these appeals ?
15. Let us come to examine the materials placed by banker during the course of enquiry.  In C.C.No.12/2016 OP produced Ex.R1 which is sent by complainant to OP bank is dated 14.07.2016, 7:05 a.m., “kindly find time to e-mail by reply the current balance to both my NRE SB A/c 90, NRE SB A/c. 257 bank account immediately”.  Ex.C2 is the copy of the letter sent to OP No.1 regarding unauthorized debit from NRE SB account Rs.2,51,000/- and Rs.80,000/-.  Ex.C3 is the copy of the letter sent by OP No.1 to complainant is dated 24.07.2015 in respect of the subject and reference their attention was drawn to para 4, 5 and para 6 which is also relevant reads as:

“We have also lodged complaint on 26^th June itself with our RTGS/NEFT desk and contacted ICICI Bank, Hyderabad Branch and HDFC, Gurgaon branch requesting to block the beneficiary accounts and sought copies of KYC.  But they refused as they cannot share KYC details of their customers unless requested by the Police or Statutory authorities.  As the Police Authorities have advised us that, in order to investigate the matter, the customer whose mail was hacked has to lodge FIR for reporting to the Cyber Crime Cell, we have called your son to the Police Station on 26^th June and requested him to file a complaint with the Police and Cyber Crime Cell on your behalf to report the email fraud.  But he refused to do so.

It appears that your wife Mrs. Anuradha S. Bhat, acting for you, lodged police complaint dated 2^nd July 2015 against our branch, requesting for investigation and to take legal action us.  A number of allegations have been made against us in the police complaint, including accusations of collusion by our branch.  Subsequently, the police have contacted us and we have replied, giving our side of the issue, together will all necessary supporting documentary evidence.”

16. It is found in paragraph 14 of the impugned order, the OP did not give details of their customers to whose account these amounts mentioned Rs.2,51,000/- and Rs.80,000/- were transferred without authorization of complainant.  Further in paragraph 15, District Forum below has stated “… Hence, the claim of OP that the complainant was not extending co-operation and that complainant did not lodge any complaint before the police about the incident cannot be accepted.  Considering that Smt. Anuradha S. Bhat, the wife of the present complainant has lodged the complaint”.  It is to be noted herein that when it was brought to the notice of the banker, it is also the duty of the banker to lodge complaint, since banker is the party in so far as account holder is concerned, if not by complainant, since, crimes in question are cognizable offence and the police cannot refuse to register crimes, either by the banker or by the account holder as the case may be.  In such circumstances, the   Forum below rightly turned down the contention of OP that complainant was not extending co-operation to lodge complaint with the police.
17. In so far as interrogatories 3, 4 & 5 as mentioned below and answers thereon District Forum below in paragraph 18 found no documents were produced by OP to show and substantiate that complainant has made similar request prior to two transactions in question, as already stated above that the document produced by OP bank is only Ex.R1.

“Q.3: Can you confirm that the specimen signature of complainant with your bank tallies with the signature found on the alleged request letter?

Ans:  Yes.

Q.4: Have you intimated the complainant prior to the fund transfer made in this case?  If yes can you produce documents to that effect?

Ans:  Yes, we have intimated through email.

Q.5:  Have your received the original request letter for online fund transfer from complainant?

Ans:  Yes.  We received it by email”

18. In C.C.No.11/2016 the District Forum below in para 12 mentioned as to reply of OP in Ex.C9 that OP is not aware of the complainant residing at Oman.  However, suffice to mention that Ex.C4 NRE account of complainant shows residential address of complainant as “P.B.No. 267, IBRI-511, Sultanate of Oman, Oman”, as such held stand of OP is ridiculous.   Further appreciated in so far as the interrogatories 3 to 5 and answer thereon of complainant and question Nos. 3 to 5 of complainant as well answer thereon of OP as found in paragraph 13 and 14 and appreciated in paragraph 15 “the e-mail dated 25.06.2015 1:23 p.m. sent to complainant by OP No.1 as to transfer of Rs.5,72,000/- to HDFC Bank Account as Aaisha Garments seeks confirmation of the request for transfer.  The next email purported to be sent by complainant to OP No.1 on the same day at 1:45 pm, it mentions that it is no way a scam and there is request to transfer the amount about the confirmation.  However, on June 27, 2015 2:44 am there was request by complainant to Opposite Party No. 1 to give the accounts statement.  At 2:03 pm of June 27, 2015 as per email sent by the complainant to Opposite Party No. 1 by mentioning that the amount from his account is transferred to a totally unknown account to him without his instructions it would appear that basing on this request the amount of Rs.5,72,000/- transferred to Aaisha Garments was reversed by opposite party on 25.06.2015, which is suffice to hold that OP did not take any care at the time of transfer of Rs.2,89,500/- on 18.06.2015 that resulted in a loss to the complainant to the extent of Rs.2,89,500/- and in C.C.No.13/2016, if we examine impugned order in paragraph 11 would be seen from Ex. R1 which is serious of a communications including that the fraudster and of complainant.  There is one communication dated June 26, 2015, 11:02 p.m., the subject mentioned as incident reporting – 20150626230240-13026, copies of the communications and account extract pertaining to the NRO account of the complainant seems to be NRE attached to this, for easy reference this document is marked as Ex.R2.  In fact Ex.R2 sent by Reshma Sumanth Mallya appears to be the Manager of OP bank as detailed on the relevant communications/transactions in respect of the disputed amounts transfer from the account of the complainant.  There was inconsistent request made with the bank from the recorded e-mail address of the complainant at different times as such normally this type of approach from customer should have raised serious suspicion with the Manager of Bank handling the complainant who admittedly a valued customer with numerous investments with OP has to be held right in pursuing of facts and appreciation thereon.  In this case as seen from Ex.R2 there is mention made Reshma Sumanth Mallya, Branch Head of Kotak Mahindra Bank namely OP that though made attempts to contact complainant over phone could not contact over registered phone number through the registered telephone.  It would be appropriate to extract relevant portion in this communication which reads:

“At 3.55 pm there was a reminder from the customer with regard to the transfer.

Upon seeing the mail we have taken print outs and tried to take telephonic confirmation from customer… but the numbers that were in our records were not reachable.  Hence, we had kept this on hold.

At 5.15 pm Mrs. Flavia Moras visited the branch enquiring on the transfer …. Mrs. Flavia is an e-employee of the branch and is a financial advisor of Dr. K.S.Bhat from 6 years.  She came with the same request which had come to us as an attachment.  She had further forwarded the customer request mail to Mr. Nikith (BOSH).

Since we could not contact the client over phone and the same was informed to Flavia …. Immediately she called Dr. Bhat from her mobile and handed over the phone to me… while talking to the customer I informed him that the funds were in NRO account and the request which was sent from NRE account and then informed him to send a fresh request mentioning the NRO account number.  And he also mentioned that he had deleted the mails from his mobile through which he was accessing and hence asked me to sent the mail which he had sent at … 5.24 p.m.  I forwarded his mail back to him mentioning FYI…

He responded at 5.45 p.m. stating to complete the transaction”

19. Thus, it is made clear one Mrs. Flavia Moras, ex-employee of OP branch and is purported to be Financial Advisor of K.S.Bhat i.e., the complainant from 6 years, the OP Manager purported to have spoken to the Manager through Mrs. Flavia Moras, as such even OP did not know to whom for confirmation the Manager of OP bank before transfer of the amount spoke to as she relied on an ex-employee purported to be financial advisor of complainant.  However, nothing is produced before forum below to show that Mrs.Flavia Moras is financial advisor and the OP bank failed to raise serious suspicion in transferring amount of Rs.3,01,000/- and thereby transferred such amount to the unknown account i.e., Ayesha Garments without any authorization from complainant.
20. Thus, from all these three complaints one aspect of the matter is established that is debiting of the account of the complainant to the extent of Rs.3,31,000/-, Rs.2,89,500/- and Rs.3,01,000/-, to a specific accounts made of beneficiaries and when there is a cyber crime complaints, it would certainly throw a light upon these transactions, whether complainant is at fault or bankers or the beneficiaries and so far no progress has been achieved by the intervention of bankers being trustees of the account holders.
21.  The OPs in these appeals would contend that as the complainant in all these complaints alleged fraudulent transfer of money from his account to some other accounts which is beyond the scope of consumer laws.  In other words, such nice questions are the subject to jurisdiction of civil courts which in our view is not accepted considering the nature of complaints and when cyber crime cases are filed in time, since OPs have failed to show that all these transactions are approved by the complainant.  In such circumstances, banker is liable for the unauthorized transactions and to substantiate the decision of the Hon’ble National Consumer Disputes Redressal Commission in R.P.3333/2013 in the case of HDFC Bank Ltd. and another Vs. Jesna Jose decided on 21.12.2020, would come to the assistance of complainant, wherein it was held in paragraph 11 followed by the decision in the case of Punjab National Bank and Anr. Vs. Leader Valves II (2020) 92 (NC), wherein in case of unauthorized and fraudulent electronic banking transactions has observed as under:

“11. The first fundamental question that arises is whether the Bank is responsible for an unauthorized transfer occasioned by an act of malfeasance on the part of functionaries of the Bank or by an act of malfeasance by any other person (except the complainant/ account-holder).  The answer, straightaway, is in the affirmative.  If an account is maintained by the Bank, the Bank itself is responsible for its safety and security.  Any systemic failure, whether by malfeasance on the part of its functionaries or by any other person (except the consumer/ account-holder), is its responsibility, and not of the consumer/”

1. Reference is also drawn to circular bearing No. DBR.No.Leg. BC. 78/09.07.005/2017-18 dated 6^th July 2017, issued by the Reserve Bank of India to all commercial banks, wherein it is statd as under:-“6. A customer’s entitlement to zero liability shall arise where the unauthorized transaction occurs in the following events:

Contributory fraud/ negligence/ deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).

Third party breach where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, and the customer notifies the bank within three working days of receiving the communication from the bank regarding the unauthorized transaction.”

Thus, from the above proposition of law laid down in the decision is squarely applicable to the facts and circumstances of all these three cases.

22. Let us refer the decisions relied on by the appellants in support of the grounds of appeal, one by one they are reported in 2021 SCC OnLine NCDRC 51 in Nikhil Phutane Vs. Chairman, HDFC Bank Ltd. and another wherein in para 12 it was held “The Petitioner availed the Net Banking facility and signed the TPT Form agreeing to the terms and conditions.  He being a Banker himself was aware of the nature of transactions.  He was provided with a customer ID and Net Banking Password (IPIN), which he should have kept with himself.  Before transfer of funds, a customer was to add the name of beneficiaries.  On any request for transfer of funds, the Bank sends a mail and SMS alert, which the Bank has done so in the present case.  The Bank waited for 24 hours and not receiving any adverse feed-back, effected the transfer.  Once the transfer of funds was made, again the petitioner was informed of the same by the respondent / Bank. Only after 47 days of transaction did the Petitioner choose to complain.  There is, thus, no deficiency in service on the part of the respondents.” Complainant failed to establish that bank had acted, malafidely fraudulently and in violation of the security procedure which has no application with these facts.
23. In the second decision reported in 2015 SCC OnLine NCDRC 3812 in the case of HDFC Bank & others Vs. Shashikant & Anr. wherein it was held in paragraph 5, 8 and 9 held as under:

“5.  Learned State Commission allowed complaint only on this count that signatures on the application form filled for opening account does not tally with the signatures found o the application filled by Sachin Bhansali seeking for transfer of amount through net banking which amounts to negligence resulting in deficiency in service.  There may be some deficiency in not verifying signature, but complainant’s account could not have been operated without disclosing his password and customer ID and prima facie there is contributory negligence on the part of complainant.  Merely on the basis of affidavit filed by complainant it does not stand proved that complainant’s account was hacked and amount was siphoned from his account.

8.  It requires elaborate evidence and complex questions of law and facts are to be decided in this matter which cannot be decided by consumer for a in consumer proceedings and which can be decided only by appropriate court of law.  This Commission in F.A. No.227 of 2007-HDFC Bank Ltd. V. Anand Kumar Gupta observed that consumer forum cannot be treated as a substitute to the Civil Courts where complicated issues requiring recording of elaborate evidence are involved and while dismissing complaint complainant was given liberty to approach appropriate court for redressal of his grievance.  …….

9.  In the light of aforesaid discussion it becomes clear that learned State Commission instead of allowing complaint should have directed complainant to approach civil court for redressal of his grievance.”

24. In the light of above discussion it becomes clear that Learned State Commission instead of allowing complaint should have directed complainant to approach civil court for redressal of his grievance which again has no application of facts of the case on had in these appeals.  In such view of the matter this commission is of the view that followed by decision in HDFC bank Ltd. dated 21.12.2020 stated supra and in particular when a cyber crime is registered and pending in time followed by the guidelines of the RBI, customers entitlement to Zero liability shall arise where the unauthorized transaction occurs only when contributory fraud/ negligence/ deficiency on the part of the bank irrespective of whether or not the transaction is reported by the customer, third party breach where deficiency lies neither with the bank nor with the customer, but, lies elsewhere in the system and the customer notifies the bank within three working days of receiving the communication from the bank regarding unauthorized transaction.”  it is squarely applicable to this case.
25. Learned Counsel for appellants relied on a decision in the case of Oriental Insurance Company Ltd. Vs. Munimahesh Patel reported in LAWS (SC)-2006-9-20 CALLJ(SC) 2006-2-238 rendered by Hon’ble Supreme Court of India wherein it was held “Proceedings before the commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated.”.
26. In the case of Capital Charitable and Education Society Vs. Axis Bank Ltd. it was held “complaint is dismissed as not maintainable before this Commission.  However, the liberty is granted to the complainant to approach the civil court having jurisdiction to decide the complaint for redressal for the grievances.”
27. In the case of P.N. Khanna Vs. Bank of India decided by Hon’ble National Commission it was held “… a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided by a Consumer Fora, proceedings before which, are summary in nature.”
28. In Devashish Mitra Vs. Managing Director, Lakshmi Varsha Company & Anr. it was held “The appellant has charged the respondent with the commission of fraud, deception and cheating.  Deficiency in service in a particular case may be incidental to deception, fraud and cheating, but the appellant/complainant has to seek redress for such offences and consequent for the damage done to him under the appropriate law in the appropriate law courts.”
29. In III (1995) CPJ 120 this Commission in K.V. Subbanna Vs. Kusuma & Ors. in paragraph 9 “The allegation of deficiency in service is only incidental to deception, fraud and cheating.  The determination of deception, fraud and cheating will not be undertaken by Consumer Disputes Redressal Forum.  The National Commission while considering such an aspect, in Devashish Mitra Vs. The Managing Director, Lakshmi Varsha Company & Another, reported in Vol.I (1992) CPJ 30, at para 8, held as under:

“8.  Again the appellant had charged the respondent with the commission of fraud, deception and cheating.  Deficiency in service in a particular case may be incidental to deception, fraud and cheating, but the appellant / complainant has to seek redress for such offences and consequent for the damage done to him under the appropriate law in the appropriate law Courts.  Determination of deception, fraud and cheating will not ordinarily be undertaken by the Consumer Disputes Redressal Forum and this must be determined before we can reach the consequential issue of alleged deficiency in service, if any.”

30.  In the decision reported in III (2000) CPJ 102 in the case of West Bengal State Consumer Disputes Redressal Commission, Calcutta in R.K. Floriculture (P) Limited Vs. Punjab and Sind Bank, New Tangra Branch held complainant cannot invoke the Consumer Disputes Redressal machinery for relief.  This decision was followed by M/s. Singhal Swaroop Ispat Limited Vs. United Commercial Bank decided by the Hon’ble National Commission on 04.09.1992.
31. In the decision reported in III (1997) CPJ 422 in the case of United Bank of India Vs. R.P.Chhabra it was held “the District Forum was not justified in comparing the two sets of signatures appearing on the cheque in question and coming to the conclusion that they did not tally with each other on an examination by the naked eye.”
32. In II (1997) CPJ 407 Punjab State Consumer Disputes Redressal Commission, Chandigarh in the case of Parvinder Kaur & Ors. Vs. Union Bank of India & Anr. wherein it was held “Since allegations of fraud were leveled against Rishi of receiving the amount twice by playing fraud upon Harpal Singh, these facts can well be gone into in the Civil Court and if factually it is found that Rishi was paid the amount, suitable relief against Rishi can be granted by the Civil Court and not by the agencies established under the Consumer Protection Act.  By merely making Rishi as opposite party in the complaint and on his part not filing any reply will not be enough for the authorities under the Consumer Protection Act to go into these allegations and give decision.”
33. Learned Counsel finally relied on decision of this Commission rendered in R.P.26/2001 in HDFC Bank Vs. S.N. Suradev Prasad decided on 18.11.2002 wherein it was held “it is needless to say that it would be indeed hazardous for the District Forum constituted under the C.P.Act to embark upon such an enquiry and to give its finding with reference to the forgery, fraud and collusion.  Though the District Forum has observed in its order that the complainant has not alleged fraud and mis-appropriation, as mentioned above these questions have to be gone into to find out whether there was negligence which amounted to deficiency in service on the part of the District Forum.  Hence, we allow this petition.”
34. Thus, we have gone through all the above referred decisions relied on by Learned Counsel for appellants and the decision cited supra of the Hon’ble National Consumer Commission rendered in the recent past relied on by Learned Counsel for respondent and  on facts and circumstances of the consumer complaints raised by the complainant against OPs, since, on alerts received from banker immediately complainant contacted OP bank and through his wife and son lodged complaint with police within three days from   debiting of money from his account to specific account which according to the complainant is unknown to him and the details are very much available with the banker and the beneficiary banks where the fund transferred, as such in our view it may not be difficult for the cyber police to recover such amount from such account holders and hold them under the clutches of law. It is needless to say as to how to interrogate or investigate is the domain of cyber police to whom banker and the account holder shall have to co-operate. They have to investigate whether the unknown persons to whom the amount is transferred from the account of complainants herein are having any nexus with complainants herein and if during the course of investigation they would find such nexus or proximity in any manner, for which certainly complainants are answerable not only for such debiting of money from his account to such beneficiaries, but, also liable to answer for passing false information to banker and filing of false complaint.  Since, from enquiry it is made out that cyber crime registered by police concerned is still pending, as such it may not be difficult for the police to complete investigation as early as possible with the assistance of complainant as well as bankers and that would be the only solution for the banker being a trustee to maintain the account of complainant and it is the bounden duty of the banker to safe guard interest of customers.  In other words, OP banker is bound by RBI guidelines and law of the land has to chose what would be beneficial for the customers and not to the fraudsters, when the cyber crime case here in these cases are still pending which would finally take the matter to the logical end, since the money held by the banker with trust of public and the said money is public money. 
35. No doubt it is true that while implementing the orders of the   Forum below in our view with abundant caution could have directed complainant to execute an undertaking in favour of the banker in each of the cases to abide by the final findings and result thereon in pending cyber crime cases to meet the ends of justice.
36.  In the above   conclusions, even on re-evaluation of evidence placed by parties to the complaint cases, we could to find any factual or legal grounds to interfere in the findings recorded by the Forum below except to the above observation and interest awarded on the debited amount from the accounts of complainants as ordered infra.
37.  Accordingly, appeals are disposed of with modification to be ordered infra and directed the OP Bankers to give credit of the debited amount along with the rate of interest prevailing as on the date of debiting of such amount up to the date of credit by the OPs.

          It is hereby direct the complainant in the respective complaint cases to execute an undertaking in favour of the OP-Banker that he/she shall undertake to abide by the final result of the Cyber Crime cases and if for any reasons in  any of the case concerned herein his/her willful actions or omissions or negligence  would be made out/proved  in the cyber crime cases to return such amount along with such rate of interest as prevailed from time to time as guided by the RBI and the Banker and shall return whatever the amount received under these awards along with interest. And shall have to face the criminal or legal consequences for which they are directed to co-operate the Banker and cyber crime investigating agency.   

        The amount in deposit is directed to be transferred to the District Forum for needful.

        The copy of this common order is directed to be kept in each of the appeals to complete the records.

 

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President

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