Tamil Nadu

StateCommission

A/277/2015

State Bank of India, The Branch Manager - Complainant(s)

Versus

R. Bhaskaran - Opp.Party(s)

16 May 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present: Hon’ble Thiru Justice R.SUBBIAH       ... PRESIDENT

            Thiru.R.VENKATESAPERUMAL … MEMBER

 

F.A. No.277 of 2015

 

(Against the Order, dated 23.06.2015, in C.C. No.6 of 2012,

on the file of  the DCDRF, Tiruvarur)

                                                    

                               Orders pronounced on: 16.05.2022

 

1.The Branch Manager,

State Bank of India,

Mannargudi.

 

2.ATM Channel Manager,

State Bank of India,

Regional Office,

Thiruchirapalli.                                                                                                                           … Appellants/Opp. Parties.

 

vs.

 

R.Bhaskaran,

S/o.Rathinavel,

Edaannavasal,

Edakeelaiyur Post,

Mannargudi Taluk,

Thiruvarur District.                                                                                                                                …  Respondent/Complainant

 

             For Appellants         :  M/s.T.Ramasamy

             For Respondent       :  M/s.B.Thirumalai

This First Appeal came up for final hearing on 13.04.2022  and, after hearing the arguments of the counsel for the parties and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

                                                                                                  O R D E R

 

R.Subbiah, J. – President.

 

             The appellants herein/State Bank of India challenges the order, dated 23.06.2015, passed by the DCDRF, Tiruvarur, in C.C. No.6 of 2012, whereby, the complaint filed by the respondent herein was allowed in part with a direction to the appellants/Bank to refund Rs.39,000/- that was uauthorizedly deducted by the Bank from the respondent/complainant’s SB Account and also to pay Rs.20,000/- as compensation, besides Rs.3,000/- towards litigation costs.

 

             2. For the sake of convenience, the parties are referred to in the course of this order, as per their respective rankings before the District Forum.

             In brief, the case of the complainant, as given in the complaint filed before the District Forum, is that the complainant, a Salesman in the TASMAC at Thalaikottai, Mannargudi Taluk, as directed by his employer, had opened a Savings Bank Account vide No.30103735980 with the 1^st OP/Bank; that he withdrew a sum of Rs.40,000/- from the said SB Account on 30.07.2009 through the ATM facility available to him; that after such withdrawal, the balance maintained in the SB Account was Rs.17,894/-; that his salary of Rs.2,032/- disbursed in the morning itself was not credited till 9.50 PM. on 31.07.2009; that, for withdrawing a sum of Rs.4,000/-, he made an attempt in the ATM, however, by slip, he entered the figure as Rs.40,000/-; that the sum could not be withdrawn and he realized that the balance available was lesser than the amount attempted to be withdrawn: that, on 18.02.2010, when he went to the Bank for updating entries in the Pass-Book, he found that, on 21.10.2009, it had been entered - ‘SET HOLD Rs.40,000/-‘; that he could not attend the Banking issue since he underwent a minor surgery then; that the entries indicated as if a sum of Rs.20,000/- had been drawn on 31.07.2009 which was not at all withdrawn; that, similarly, a sum of Rs.19,000/- is shown to have been withdrawn from the complainant’s account to some other Account which the Bank alone knows and also, a sum of Rs.2,550/- has been entered as ‘set hold’, but, it has not been deducted so far from the account of the complainant and it is kept in abeyance; that, when the complainant had approached the 1^st OP and expressed his difficulty in using the ATM card, the Manager stated that the account cannot be operated unless the complainant admits the alleged withdrawal of Rs.40,000/- on 31.07.2009 and the said act is nothing but a blackmail and deficiency in service; that the complainant underwent ortho treatment and hence, he could not properly follow up the existing issue with the Bank; that the complainant was neither permitted to operate his account nor to withdraw any amount, as such, much hardship has been caused to him due to service deficiency and dereliction of duty on the part of the Bank; that, in fact, instead of entering Rs.4,000/-, by mistake, it was typed as Rs.40,000, however, no amount was collected from the ATM Machine since the balance available as on the previous day was only Rs.17,894, however, by alleging that the complainant had withdrawn a sum of Rs.40,000/-, the OPs/Bank unnecessarily deducted Rs.39,000/-; that the Bank never chose to intimate about the alleged fraudulent act to the complainant nor called for any explanation from him and it was only after the information by the complainant himself followed by his explanation and legal notice, the OPs/Bank have come out with the accusation of fraud against the complainant; that, after the complainant admitting his mistake in operating the ATM Machine, the Bank ought to have set right the things, but, their present conduct would only reveal their vindictive nature and service deficiency; that, for the legal notice issued by the complainant, the OPs replied with false contentions; that, not being able to withdraw any amount till the OPs could recover the allegedly withdrawn amount of Rs.40,000/- on 31.07.2009, the complainant was subjected to mental agony, for which, the OPs are bound to compensate him; and that, accordingly, the complainant sought the District Forum to direct the OPs to pay him a compensation of Rs.50,000/- for the deficiency in service & for casting unwanted remarks like fraud, etc. and further, to direct refund of Rs.39,000/- that was unauthorizedly deducted from his account, besides costs of the complaint.

 

             3.  The OPs/Bank resisted the complaint by filing a written version, wherein, among other things, it is stated thus:-

             After withdrawing Rs.40,000/- on 30.07.2009, the balance available in the account of the complainant was only Rs.17,894/-. Again, on 31.07.2009, the complainant fraudulently operated the ATM Machine and withdrew Rs.40,000, thereby, he misappropriated the sum belonging to the Bank available in the ATM machine.  Hence, subsequently, the Bank proceeded to make set hold entries in the account for the said sum of Rs.40,000/-.  No objection has ever been made out by the complainant for re-appropriating the amount. Also, he did not object for the set hold entries and deduction of amount by the Bank from 21.10.2009 onwards.  As an after-thought, with ulterior motives, the complainant issued the legal notice, dated 22.01.2011, for which, the OP had issued the reply notice, dated 08.02.2011.  Subsequently, a rejoinder notice was issued by the complainant on 20.04.2011 and the Bank suitably replied to the same by letter dated 28.04.2011.  There was no deficiency of service on the part of the Bank and hence, the complaint may have to be dismissed with costs.

 

        4. To substantiate the claim and counter-claim, the parties filed their respective proof affidavits and, while the complainant marked 5 documents as Exs.A1 to A5,  the OPs marked 4 documents as Exs.B1 to B4.  The District Forum, after analysing the materials available, allowed the complaint in part as mentioned above, by holding inter alia that the Bank could have easily verified from the CCTV footage as to whether the complainant had actually collected the sum in question. Aggrieved thereby, the present Appeal by the Bank.

 

        5.  Learned counsel for the Bank would submit that, by taking note of the conduct of the complainant in not complaining to the Bank about the alleged failure in withdrawing the sum at the ATM Machine on 31.07.2009, the District Forum ought to have drawn an adverse presumption so as to reject the claim of the complainant, but, unfortunately, it simply believed the case of the complainant that by, mere finger slip, the amount was wrongly entered as Rs.40,000/- instead of Rs.4,000/- and that no amount was withdrawn.  According to him, when the presence of the complainant at the ATM Centre during the night hours of 31.07.2009 remains to be an admitted fact and when the complainant himself stated that he attempted withdrawal by entering a sum of Rs.40,000/-,  in the light of Ex.B3/Extract of the ATM Switch Centre and Ex.B4/Screen Shot Printout showing the withdrawal of Rs.40,000/- from the complainant’s account, there cannot be any difficulty to accept the version of the Bank that, in fact, the complainant had withdrawn the said sum in a fraudulent manner.   In such circumstances, no fault can be attached to the Bank in resorting to recover the sum in question.  In cases like this nature, the Nationalized Banks have got every right to recover the money without even issuing any show cause notice so as to survive fraudulent attack on the Bank Accounts.  Further, the CCTV footage would only show the physical presence showing the customers’ activities and the same cannot be used to find out as to whether the customers withdrew the exact amount from the ATM or not.  While so, the District Forum assessed the case and claim from a totally wrong perspective to issue the ultimate direction, which is factually erroneous and legally unsustainable and hence, the same is liable to be interfered with, he pleaded.

 

             6. Per contra, learned counsel for the complainant would argue that this is a peculiar case, where, the Bank, in order to hide its own fault, has vindictively alleged fraud against the poor complainant, who, in view of the arbitrary and illegal act on the part of the Bank, denied access to the Banking Operations for a long period.  According to him, even though the Bank is consistently alleging fraud against the complainant, nowhere in the version filed by them, which is absolutely bald and shallow, they whispered or detailed as to how the complainant had played fraud upon the Bank, when there was no manipulation or technical interference by him with the ATM Machine.   Since the hard allegation of fraud was absolutely without basis and further, the Bank miserably failed to justify their illegal act in making set-hold entries to recover the uncollected money, the District Forum rightly proceeded to hold against the Bank by recording convincing and logical reasonings and hence, the order passed by it does not call for any interference, he pleaded.

    

             7. In view of the above rival submissions, the only question that needs to be answered is as to whether the case of the Bank can be accepted on the basis of Ex.B3 alone, which is the extract of ATM Switch Centre?

             It is common knowledge that if a customer enters the figure in the ATM Machine for a sum more than the amount available in the account, there will not be any cash-flow and a suitable print-out advice would be released by the machine for the reference of the customer.  While so, in the present instance, admittedly, after the withdrawal on 30.07.2009 for a sum of Rs.40,000/-, the available balance in the account of the complainant was Rs.17,894/-.  In such circumstances, even if the complainant had really entered Rs.40,000/-, no amount would have been released by the machine, since what was available in the account was below Rs.40,000/-.  But, according to the Bank, the said withdrawal was fraudulently done by the complainant.  If that be so, the burden is on the Bank to establish what was the mode of fraud – as to whether the complainant indulged in manipulation of the ATM Machine or technically interfered with it for release of the amount.   Although it is now projected as if he attempted to withdraw Rs.40,000/- by seeing the erroneous balance of Rs.57,894, that is, the same balance even after the first withdrawal of Rs.40,000/- on 30.07.2009 and thereby, he indulged in the fraudulent transaction, unfortunately, the Bank failed to establish the same satisfactorily.  Neither in the version nor in the course of arguments, it is asserted that the Bank in fact verified the materials in particular the CCTV footage available from the cameras fixed in the ATM Centre that the complainant was then collecting any cash from the ATM Machine.  Even before this Commission, the Bank took rather a loose stand that, from the CCTV footage, it cannot be ascertained as to whether the customer withdrew the exact amount entered by him in the ATM Machine.  It is the Bank which holds all materials pertaining to the ATM Transactions including the CCTV footage and by producing the same, they could have well substantiated their version about withdrawal of the sum. It is not necessary to look at the exact sum alleged to have been collected; rather, the glimpse of collecting the cash from the machine itself may tilt the scales in favour of the Bank.  But, unfortunately, the Bank neither asserts any verification of the CCTV footage by them on that aspect nor they have come forward to adduce the same as evidence, for the reasons best known to them.

             Further, in a serious case of this nature, the Bank ought to have produced all available substantive records before the Forum and left no stone unturned in establishing their case.  In fact, when the complainant himself offered for cross examination, neither they took any real effort to elicit anything from his mouth nor came forward to let in their own witnesses to fortify their case, in particular, the alleged fraud played by the complainant.  Once again, they miserably failed to do so. 

 

             8. Coming back to the document under Ex.B3, straight away, it must be stated that the said document cannot even be looked into for any assessment for the reason that the statement of account officially entered  by the Bank itself in the Pass-Book, marked as Ex.A5, would show that on 31.07.2009, there was a deposit entry alone in the Account for a sum of Rs.2,032/- towards salary and apparently, there was no entry at all for any withdrawal, in particular for Rs.40,000/-.  If really the second withdrawal for a sum of Rs.40,000/- was done, it would have been first reflected as ‘ATM Withdrawal’ in the pass-book, but, it is not so.   Similarly, if really, as per the present stand of the Bank that the ATM would have displayed a wrong balance of Rs.57,894/- that might have lured the complainant to fraudulently withdraw Rs.40,000/-, once again, the Bank failed to produce the relevant ledger or record about the wrong balance of Rs.57,894/- that should have been displayed  by the ATM for a short-while, if it was true.   Therefore, it is absolutely unsafe to rely upon Ex.B3 alone to accept the case of the Bank, which miserably failed to substantiate the alleged fraud/misappropriation against the complainant through any tangible material held by them.  Not only that, as pointed out already, the Bank never evinced any interest to elicit any inculpatory statement from the complainant when he made himself available for cross-examination and also, for the reasons best known, they did not come forward to adduce the relevant ledger and records as well as the CCTV footage, as stated above.   In other words, it is only because of the absolute failure on the part of the Bank in coming up with concrete and substantive piece of evidence, it has invited the adverse order from the District Forum and, that being so, by merely now stating that the complainant did not immediately object to the set-hold action initiated by them nor he took any earnest step for re-appropriating the sum, they cannot expect to have a chance to succeed before this Commission.  We find no good reason or ground to interfere with the well-considered order passed by the District Forum.

 

             9. In the result, the appeal fails and it is dismissed, confirming the order, dated 23.06.2015, passed by the DCDRF, Tiruvarur, in CC No.6 of 2012.

 

R.VENKATESAPERUMAL                                                                                                                R.SUBBIAH, J.

MEMBER                                                                                                                                              PRESIDENT.

 

ISM/TNSCDRC/Chennai/Orders/May/2022.