Present         (1)     Nisha Nath Ojha,   

                              District & Sessions Judge (Retd.)                                                                                         President

                    (2)     Smt. Karishma Mandal,

                              Member

Date of Order :  29.02.2016

                    Nisha Nath Ojha

1. In the instant case the Complainant has sought for following reliefs against the Opposite party:-

1. To direct the opposite parties to credit the amount of Rs. 20,000/- ( Rs. Twenty Thousand only ) to the account of the complainant along with interest @ 18% from the date of withdrawal till the date of payment.
2. To pay Rs. 10,000/- ( Rs. Ten Thousand only ) as compensation.
3. To pay Rs. 5,000/- ( Rs. Five Thousand only ) as litigation costs.

2. Brief facts of the case which led to the filing of complaint are as follows:-

The complainant has asserted that she is a joint account holder in branch of opposite party no. 1 bearing account no. 20001802517 along with her daughter and was also issued ATM card bearing no. 10889.

It has been further asserted by the complainant that on 15.02.2011 she tried to operate the ATM of opposite parties for withdrawing the cash but due to malfunctioning of the ATM the withdrawal could not be made. The complainant after cancelling the operation went to another ATM of opposite parties which was next to former ATM and then she withdrawn Rs. 13,000/- in two transaction i.e. Rs. 10,000/- + Rs. 3,000/- as only Rs. 10,000/- was allowed to be withdrawn at one transaction vide annexure – 1.

It is the further case of the complainant that after withdrawing vide annexure – 1 when she left the ATM she received SMS that a sum of Rs. 20,000/- was debited from her account. Thereafter she got her passbook updated and the copy of her passbook has been annexed as annexure – 2. The complainant thereafter filed a complaint with all details but after keeping the complaint for 7 days her claim was rejected and the aforesaid amount was not credited in her account. The Xerox copy of complainant detail has been annexed by the complainant vide annexure – 3.

The grievance of the complainant is that from the several documents it is crystal clear that fraudulent amount of Rs. 20,000/- from the account of complainant was withdrawn at 7:25A.M. on 15.02.2011 from one ATM vide transaction no. 1611 while at the same time 7:25 A.M. the complainant was withdrawing Rs. 3,000/- from another ATM using her ATM vide transaction no. 7423 as will appear from annexure – 4 because two transaction at the same time can not be take place.

The grievance of the complainant that Rs. 20,000/- have been withdrawn from her ATM without her permission and knowledge which clearly proves deficiency on the part of opposite parties.

On behalf of opposite party no. 1 a reply statement has been filed. In Para – 5 of the said reply it has been asserted that complainant has withdrawn an amount of Rs. 20,000/- on 15.02.2011 at 7:25 A.M. from ATM bearing ID no. S – 108000152002 and the said amount was Rs. 20,000/- which was dispensed by ATM.

It has been further stated by opposite party no. 1 ( Bank )that after successful withdrawal of amount the complainant was informed through SMS. Opposite party no. 1 has annexed the receipt issued by ATM with his reply which has been also annexed as annexure – 1 of the reply petition.

It has been further asserted that two transaction is possible within one minute and the receipt issued by ATM also mention the remaining balance in the account of account holder.

It has been further asserted that annexure – 1 of the complaint petition ( receipt ) granted by ATM after withdrawal of Rs. 3,000/- shows Rs. 46,380/- i.e. balance while the last transaction the available balance is Rs. 26,380/- which clearly establish that Rs. 20,000/- has been withdrawn by the complainant after withdrawing Rs. 3,000/-.

Opposite party no. 1 has denied all allegation of the complainant that Rs. 20,000/- has been withdrawn fraudulently and illegally and without knowledge of the complainant.

On behalf of opposite party no. 2 i.e. S.B.I. main branch a written statement has been filed. In Para – 7 of which it has been asserted that complainant has withdrawn amount of Rs. 20,000/- on 15.02.2011 at 7:25 A.M. from ATM bearing ID no. S – 108000152002 and the said amount of Rs. 20,000/- was dispensed by ATM and a receipt was also dispensed by ATM after completion of successful transaction and the said receipt has been annexed as annexure – 1 in the reply of opposite party no. 1.

Opposite party no. 2 have broadly repeated the same fact stated by opposite party no. 1 in his reply.

On behalf of complainant a rejoinder to the reply of opposite party no. 1 had been also filed in which the same fact has been repeated which have been broadly stated in the complaint petition.

We have narrated the fact asserted by both the parties in forgoing paragraphs.

It is the case of the complainant that Rs. 20,000/- has been fraudulently withdrawn. The opposite parties have asserted that there is no fraudulent withdrawal as the withdrawal has been done by the complainant because the ATM receipt clearly shows that the transaction was successful.

The complainant has herself annexed the ATM receipt as well as complaint detail ticket which have been annexed as annexure – 1 and 3 of complaint petition.

From bare perusal of annexure – 3 of reply statement of opposite party no. 1 the following fact have been mentioned.

“( ATM branch reported that transaction is successful. Customer also advised through SMS ).” The same annexure has been annexed by opposite party no. 1 which have been mentioned on page – 8 of the reply petition of opposite party no. 1 ( i.e. annexure – 3 of reply statementof opposite party no. 1 ). Opposite party no. 2 has been also supported by opposite party no. 1 and repeated the same fact. Opposite parties have denied that ATM in question was malfunctioning and stated that ATM in question was working properly and transaction was successful.

It is needless to say that ATM Card as well as PIN of the ATM Card is always property of account holder and it is not possible to withdraw any amount through ATM without using the ATM Card and giving the correct PIN to ATM.

It goes without saying that as complainant has stated that she has not withdrawn amount and opposite parties have stated that transaction is successful hence these disputed fact cannot be decided by this Forum.

It also goes without saying that any cyber crime if any is beyond the purview of this Forum.

In view of the fact stated above we have no option but to dismiss the case and as such this case stands dismissed but without cost.

                                        Member                                                                   President