This is an application u/s.12 of the C.P. Act, 1986.

            Complainant by filing this complaint has submitted that he has a Savings Bank Account with SBI Bank, Kidderpore Dock Yard Area Branch, Kolkata – 700 024 and he also holds an ATM card.  On 05-03-2011 he withdrew Rs.5,000/- from ITC ATM, State Bank of India, Kolkata and after withdrawal of the said amount at 15:13 hours balance was found Rs.6,53,001-90 paisa.  Subsequently, on 10-03-2012 he again went to South-Eastern Railway ATM Counter of SBI to withdraw a sum of Rs.8,000/- and after withdrew balance was found Rs.6,10,001-90 paisa instead of Rs.6,45,001-90 and thereafter, he got a mini statement wherefrom it is found that a false transaction of Rs.35,000/- was withdrawn just after withdrawal of Rs.5,000/- at 15:07 hours.  That false transaction was reported to SBI but no effect and SBI told him to contact and lodge a complaint with the Police Station, so, complainant reported the matter to the police in writing.  Thereafter, he lodged several complaints to the Banking Ombudsman and other and complainant asked the OP to show the video footage but OP did not show it but fact remains banks are the custodian of the money of the customers and the safety and security of the same is primary responsibility and any laxity or in adequacy in that matter on their part tantamount to deficiency of service and fact remains on repeated representations and persuasions to move them to take action by the OP but OP did nothing and finding no other alternative and getting no redressal complainant was compelled to file this complaint for refund of Rs.35,000/- and compensation etc.

            On the other hand OP by filing written statement submitted that the complainant is the customer in respect of S.B. Account No.10770780419 and he has one ATM Debit Card being No.6220180792000001703 in respect of his Savings Bank Account. 

            On 12-03-2012 complainant made complaint before the Manager, State Bank of India about the withdrawal of Rs.35,000/- from his savings Account No. 10770780419 through ATM on 05-03-2012 and the said letter complainant also stated that the said amount was not withdrawn by him and on receipt of the said complaint Banking Authority made enquiry in this matter through customer transaction and came to know that on 05-03-2012 at about 15:09:31 hours Rs.35,000/- was withdrawn through ATM card and said transaction was successful and those documents are filed by the OP and practically complainant has compelled to prove in negligent and deficiency service on the part of the Banking Authority and when the transaction was successful there is no laches on the part of the OP and OP has also challenged the complainant version and submitted that the entire complaint is false and fabricated for which the complaint should be dismissed.

Decision with Reasons

Practically in this case Ld. Lawyer for OP by filing ruling reported in 2011(2) CPR 26 (NC), another judgement passed by National Commission in RP No.2382 of 2012 dated 18-01-2013 and also judgement of State Commission, West Bengal in FA No.173 of 2012 dated 18-01-2013 and another judgement of the State Commission being No.FA 38/2012 dated 11-01-2013 and submitted that undisputed fact is that complainant has not stated that his ATM Card and Pin No. somehow was stolen by some unknown person and for which the sum of Rs.35,000/- had been withdrawn on that date and in view of the above ruling it is found that it is the settled principle of law that it is not possible for any unknown person to withdraw money from ATM without ATM Card and Pin No. and in this case there is no such assertion of the complainant that the ATM  card and Pin No. fell in the wrong hand and so the present complainant’s entire case is false and all the judgement shall support the above view.  So, the compliant should be dismissed.

            The complainant submitted undisputed fact is that on 05-03-2012at about 15:07:24 hours he withdrew Rs.5,000/-.  Thereafter, he left the said ATM machine and after considering the core banking system (CBS) it is found that complainant withdrew Rs.5,000/- from ATM I.D. S10A003084076 and that was withdrawn at about 15:07:24 hours but complainant’s allegation is that after departure from the said ATM machine he never used that machine not other machine but after considering that core banking system that is customer transaction as produced by the OP it is found that Rs.35,000/- was withdrawn from ATM ID No.S10B003084077 and time and hours is 15:09:31 hours.  Fact remains video footage has not been produced but truth is that after first withdrawal of the complaint in respect of Rs.5,000/- at about 15:07:24 hours from ATM I.D. S10A003084076, complainant claim is that he was not there.  For the sake of the argument if it is accepted that video footage can only identify the person in the transaction but we are not giving any importance to video footage but question is whether complainant used another machine on that date in this regard we have gathered in so many cases that where there are two ATM machines in one place or one room if any customer for the purpose of withdraw uses one ATM Machine and another machine is side by side in the same room in that case at the time of actual transaction by customer may be hacked by another hacker by placing such devices             to trap the ATM card and including Pin code number parallaly and after departure of that fellow from that ATM machine another machine is operated by the hacker and said hacker withdraw the amount and in this case that has been done what is prominent from the bank statement because from another machine Rs.35,000/- was withdrawn but from customer’s transaction slip it is clear that complainant used one machine and withdraw Rs.5,000/- and after his departure, from another machine Rs.35,000/- was withdrawn but that Rs.35,000/- was not withdrawn from the ATM I.D. S10A003084076 and that is the common procedure of the hacker where there are two ATM machine inside the ATM room and in this regard we shall have to say that there is observation of the State Commission or the National Commission that unless and until ATM Card and Pin No. fell in wrong hand it is impossible for anyone to withdraw money from ATM without ATM card or Pin no. is not scientifically in all respect correct.  But the present hacking system is scientific and technically high class in nature that there is no necessity to start the ATM card or Pin No. from the customer but they can prepare it during any transaction by any customer if there is another ATM machine in the said room practically considering the present situation we have gathered that in the present case hacker adopted that method that is the malware system by placing devices at the time of transaction made by the complainant from withdrawal of Rs.5,000/- for machine no. ATM I.D. S10A003084076 from the parallel machine being ATM I.D. S10B003084077 so it is apparent that another person who by adopting such hacking system by placing devices and applying malware system trapped the ATM card print out and pin code no. in that ATM Machine and thereafter, after departure of the complainant hacker used that next ATM machine where he procured all the details of Pin Code and ATM card and managed to withdraw it and that is the common method in most of the cases but this high class technology is not known to us so we so many cases relying upon the argument of the banking authority that when PIN Code and the ATM card with the customer so it is the duty of the customer to prove it but this thought has no basis in view of the present technology being used by the hackers in most of the cases and after thorough study of books of ATM fraud and securities and also different types of anti-devices which are used by different countries we are astonished that banks are not thinking over such matter for safety of the customer and no doubt in this case the bank has no stated that anti-devices was fixed with the said ATM Machine and also have not submitted before this Forum that they adopted devices to check the ATM machine fraud, card skimming then we are convinced to hold that OP has failed to prove that ATM was quite ok and there is no such certificate of banking authority that against the present ATM machine to check the fraud and card skimming they have expanded their network by migrating towards embodied chip and FLS practically in this case some unauthorized persons adopted high computer technology and managed to trap the ATM card and Pin No. by using devices and by adopting scientific hacking process at the time of operating another machine by the complainant but peculiar factor is that OP has not given to any satisfactory answer about the scientific method of hacking by hackers and considering common defence and common ruling as produced by the OP Bank we find that banking authority have their no knowledge and technologies of ATM fleet but truth is that all over in India ATM hacking is being continued daily and hackers are following card skimming and different kind of ATM hacking and in this case particularly the second machine of the same room was used by the hackers and they trapped the ATM card including the ATM Pin code no. during transaction by applying devices and captured the details of ATM card and Pin code by trapping, by adopting the process of trapping and fishing and that is the procedure as adopted by the hackers as perpetrators and in most of the cases where there are two machines in one room said procedure is adopted by the hackers and in this case same procedure has been adopted by the hackers and withdrawal is made after departure of the complainant because prior to that using another machine the perpetrators captured all details and included if in the next machine and after the complainant’s departure the amount was withdrawn and no doubt in this case there is no chance to deny the fact that another machine was used by hackers and OP was very aware of the fact that hackers might have committed such offence by adopting hacking procedure so in the written version they are silent about the existence of two separate ATM machines in one room and withdrawal of Rs.35,000/- from another machine not from the machine from which complainant withdraw Rs.5,000/- and in this regard there is a very beautiful observation of several computer scientists that no material is required for hacker if the hacker places his technologies he can collect everything.  Very recently though that is not published but fact remains entire examinations and result system as recorded in the internet of WBUT was hacked by some students for which WBUT was compelled to change their entire software that means the WBUT Authority who have their so many technologist and computer specialist failed to save their computers.  Fact remains the forum members having no knowledge of computer science shall have to swalloed the two procedure of banking authority as vomited in all the cases but fact remains banking authority is found not expertise in respect of hacking of ATM machine and in the present case we asked the bank authority whether there machine are protected by fixing anti devices and FLS etc. they were astonished.  So, we are convinced that in the present case by using second machine at the time of transaction made by the complainant perpetrators committed and trapped the entire materials of the complainant and managed to withdraw it and that is the procedure and that was adopted what is so proved.

            It is to be kept in our mind that science is progressing at large then we cannot have to go through only prototype ruling but to learn different aspect of fact from particular case but truth is that we are not going through such books but we are passing our judgement wholly by collecting some materials from the record but that cannot be a scientific judgement at all.  There are so many complications in respect of  this case but that particular case shall be decided after ascertaining what type of complications are there and if it is required it must be decided after considering the scientific process if a person having no motor vehicles repairing knowledge but such a person repairs a vehicle invariably after such repair by un-experienced mechanic        the driver must have to face another accident.  But anyhow we have gathered from books on Hacking that there thousands of hacking process here and there if anti devices to check the hacking and fraud is not fixed with all the ATM machine it shall be continued.      

Another factor is that ATM machine mechanic who are engaged for the purpose of repair in case of non-operation or defect of ATM machine is the best hacker in all respect and if proper CID investigation is made it shall be found this mechanics are behind all the hackers and they are engaging back behind it so bank ATM machines are not safe for using by the customers because bank has no taken any safety measures as yet and that is true because bank administration does not know how to check such sort of ATM hacking so bank authority must have to from a technical board in this regard to keep the ATM machine with proper safety for saving such sort of hacking but that approach is negative because they are very much accustomed with placing of such judgments but science is progressing much.  In this regard we can mention one example that is found that key is in the pocket of the driver but the car is stolen then invariably insurance company shall have to say when key is with the driver in that case driver is a thief and adopting similar procedure customer is found the valid withdrawer when ATM Card and Pin no. was with him but that is not the science and method and technology.  There is no necessity of Card and Pin for withdrawal by the money of the hackers.  So, applying scientific approach and present facts and circumstances we are convinced to hold that some unauthorized person(perpetrators) managed to withdraw sum of Rs.35,000/- from another machine after trapping the pin code and ATM Card while it has been used by the complainant in another ATM machine and that procedure is very scientific procedure and that had been adopted by the hacker by placing devices in all the cases but that is being overlooked by the Forum.  So, about ATM hacking more knowledge is required for us to decide particular case of ATM fraud.

In the light of the above observations we are convinced to hold that OP did not give any safety and protection of the ATM for which some unauthorized persons (perpetrators) hacked the machine by trapping ATM Card, Pin code and details and somehow withdraw it and that is the fault on the part of the OP Bank and OP Bank failed to certify that their machine is free from all attack of hackers and anti-devices are not there, FLS has not been fixed and moreover, in this case the complainant has been able to prove that he did not withdraw it which is proved.  So, in the circumstances, OP is deficient and negligent which is well proved and for which complaint succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest with cost of Rs.10,000/- against the ops.

            Ops are jointly and severally are hereby directed to refund and pay Rs.35,000/- along with simple bank interest @ 8% over the same since the date of fraudulent withdraw of Rs.35,000/- from the account of the complainant and till its full payment by the ops.

            For causing mental pain and agony and sufferings, ops jointly and severally are directed to pay the sum of Rs.5,000/- to the complainant and also for deficient and negligent manner of service on the part of the op.

            Ops jointly and severally are directed to pay the entire decretal amount to the complainant within 15 days from the date of this order, failing which for non-compliance of the Forum’s order, ops jointly and severally shall have to pay penal interest @ Rs.100/- per day till full implementation of this order and if it is collected same shall be deposited to this Forum.  If ops fail to comply the order within the stipulated time, in that case penal proceeding u/s 27 of C.P. Act 1986 shall be started and for which further fine or penalty shall be imposed.