ORDER

23.01.2024

SH. RAJESH, MEMBER

1. Vide this order we will be deciding the admissibility of present complaint.
2. A complaint has been filed by complainant seeking direction to OPs to pay a sum of Rs. 2,29,815/- against the loss accrued to complainant due to the deficiency, breach of obligation and omission, gross misconduct and negligence on the part of the OPs.
3.  The complainant is an account holder in the respondent number one bank having account number 36541995301 in the Ratia branch of OP No.1. That the complainant’s daughter Amandeep Kaur who is currently preparing for UPSC exam and residing in Mukherjee Nagar, Delhi on 27th September 2022 required ₹13,000 to pay fees for her coaching for competitive exams. That at around 2 to 2:30 PM on 27th September 2022. The complainant’s daughter Amandeep with her friend, namely Sheetal Ghauhar entered into HDFC Bank in Mukherjee Nagar, North West Delhi to withdraw ₹13,000 from the complainants SBI PM Kisan debit card and as they had imperativeness to withdraw ₹13,000 to pay fees for her coaching for competitive exams and then when complainant’s daughter and her friend withdrew ₹13,000 in 2 parts of ₹8000 and ₹5000 and was putting money withdrawn from bank to her bag and at that time when the complainant’s daughter Amandeep Kaur has complainant’s said debit card was still inserted in the ATM machine, then, all of a sudden 2 unknown male person entered into the sand ATM and Complainants daughter asked to the boys how they have entered into the ATM when they are withdrawing money from ATM machine. Then they informed her that they are employees of HDFC bank and have to check the ATM machine if it is properly operating and even when the complainant's daughter Amandeep Kaur and her friend informed that it is working fine. Then they said it is their duty to still confirm it and then one of them diverted the complainant's daughter and her friend's attention by arguing with them and the other person had picked out complainant’s debit card from machine and put their card in the set ATM. That due to apprehension of being hurt or can do inappropriate act so the complainant’s daughter Amandeep Kaur and her friend Sheetal did not further aggravated situation and thought to leave soon from there all of sudden the other friend of that guy who was arguing with them took away complainant’s ATM card which was inserted in the ATM machine at that time which complainant’s daughter have duly seen in the CCTV footage of the HDFC ATM which was shown by HDFC Bank, Janakpuri, Delhi having their main branch there. In this manner those two thieves had swapped complainant’s  debit card and left his debit card inserted in the said ATM which the complainant’s daughter Amandeep Kaur in good faith presumed her mother’s i.e. complainant’s debit card and as complainant's daughter and her friend Sheetal was getting late to attend UPSC coaching classes, so they left from their after those 2 thieves left.
4. Deck, the daughter of the complainant. Could not even realise. At that time, that Complaints debit card was being swept by those 2 thieves. That the complaint was shocked to know on 30th September 2022 when she received text message on her mobile phone number regarding balance of ₹39.65 only left in her bank account. And she was shocked to know about it. There after she got her said David card blocked on 2nd October 2022.
5. That when complainant spoke to her daughter in this regard then the complainant's daughter was astounded to see that it was debit card bearing number 5103720258915618 having name of Mohammad Jabir with whom Complainant's debit card was swapped by those two thieves in ATM. Thereafter the complainant and her daughter went to OP No. 1 bank and sort bank statement and got dismayed to see the bank account statement that on 27th September 2022, ₹50,000, then ₹9.44 and ₹7023.60 and was debited from your account, was debited illegally from complainant’s account for purchase vide her debit card and then on 28th September 2022 another purchase of ₹30,000, ₹10,000/- was made from the complainant’s debit card illegally and withdrawal of ₹10,023 and then again ₹10,023 and then ₹9.44 and then of ₹20,000 for purchase illegally on the same day and then on 29th September 2022. Again, ₹50,000 was debited from complainants Debit card illegally for alleged purchase of ₹10,000 and ₹10,000 again and ₹9.44 also on same day was withdrawn from complainant’s bank account and then on 30th September 2022 ₹12,700 debited for purchase by illegal person who had stolen complaints debit card and then ₹10,023 and again ₹10,023 withdrawn from ATM to the utter dismay of complainant. That OP1 allowed these illegal purchase debit they could have sent message to complaint to verify about purchases and averted this fraud to complainant account but did not do so.
6. Let the components daughter. File complaint. Before Mukherjee Nagar. Police station and thereby BF Air bearing number 1007. Slash 2022 divided 4th October 2022. Under Section 420, Indian Penal Court lost for these fraudulent activities. The complainant had even informed RBI bank, but her grievance was not redressed.
7. That OP1 being deficient in their services had caused loss of ₹ 2,29,815 to complainant due to which the complaint suffered immense losses.
8. That now it is also clear that Respondent Bank have supported the fraudsters / thieves by giving them opportunity to defraud Complainant and her daughter.
9. We have perused the record of the complaint and heard counsel for complainant on the point of admission of the present complaint.        
10. From the bare perusal of the facts and allegations made in the complaint by the complainant it is apparent that complainant is seeking relief in a theft case of money through her ATM Debit Card in the ATM issued by OP 1 alleging same to be deficiency in service on the part of OPs for which a n FIR has been registered before Police station.  The Point for consideration before us is that whether money stolen from the Bank account of an account holder by stranger through fraudulent means amounts to a consumer dispute. 
11. it is relevant to consider judicial pronouncement touching the issue involved in the present complaint case.

In Sheenam Raheja vs State Bank Of India CC NO. 10 OF 2011 decided on 19 May 2023 by Hon’ble NCDRC it was observed: - 

The matter clearly has issues of a criminal nature involved arranting a proper investigation under the relevant          sections of the Indian Penal Code. Such issues cannot be deal with under the Consumer Protection Act or in a Consumer Court which is required to dispose of matters through summary proceedings. A matter of forgery of cheques and requisition slips cannot be dealt with in this Commission for this reason. A consumer complaint alleging deficiency in service on the part of the Bank cannot be adjudicated until the nature of deficiency is prima facie established. As is manifest in the instant matter, until the FIR before the EOW, Delhi Police get finalised and the charge sheet before the appropriate court of law is finalised, it would not be possible for this Commission to adjudicate the matter.

12.  In the present case also there are allegations of fraud, cheating and theft on account of which money was withdrawn from the bank account of the complainant which cannot be adjudicated upon by this Commission under C.P. Act, 2017 unless there are direct allegations of deficiency in services or unfair trade practice adopted by OP after conclusion of investigation by police authorities.
13. On the basis of above statutory position, judicial pronouncements observations and discussions and for the foregoing reasons, present complaint is dismissed as being infructuous at this stage with liberty to the complainant to approach this Commission appropriately as and when there is an order establishing the liability of the opposite party in order for the prayer to be considered and adjudicated as per the provisions of the Consumer Protection Act, 2019.
14. Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry.

Order be uploaded on www.confonet.nic.in. File be consigned to Record Room.

Announced in open Commission  on 23.01.2024.

(SANJAY KUMAR)                (NIPUR CHANDNA)                                      (RAJESH)

PRESIDENT                                    MEMBER                                                 MEMBER