Gauhati High Court
Paresh Chandra Deka vs The State Of Assam And 10 Ors on 28 May, 2024
Author: Devashis Baruah
Bench: Devashis Baruah
Page No.# 1/20
GAHC010021872021
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/875/2021
PARESH CHANDRA DEKA
S/O LATE ADITYA DEKA, R/O VILL. MURARE, P.O. AND P.S. RANGIA, DIST.
KAMRUP, ASSAM, PIN 781354
VERSUS
THE STATE OF ASSAM AND 10 ORS
THROUGH THE COMMISSIONER AND SECY. TO THE GOVT. OF ASSAM,
HOME AND POLITICAL AFFAIRS DEPT., DISPUR, GUWAHATI 6
2:THE DIRECTOR GENERAL OF POLICE
ASSAM
ULUBARI
GUWAHATI 781007
3:THE SUPERINTENDENT OF POLICE
KAMRUP
AMINGAON
GUWAHATI 781031
4:THE OFFICER IN CHARGE
RANGIA POLICE STATION
P.O. AND P.S. RANGIA
DIST. KAMRUP
ASSAM
PIN 781354
5:THE RESERVE BANK OF INDIA
Page No.# 2/20
REPRESENTED BY ITS REGIONAL DIRECTOR
STATION ROAD
GUWAHATI 781001
ASSAM.
6:THE STATE BANK OF INDIA
REPRESENTED BY ITS CHAIRMAN
BANK BHAWAN
MADAM CAMA ROAD
MUMBAI 400021
7:THE REGIONAL MANAGER NORTH EAST REGION
STATE BANK OF INDIA
DISPUR
GUWAHATI 781006
8:THE ASSTT. GENERAL MANAGER (CCC)
STATE BANK OF INDIA
LOCAL HEAD OFFICE
DISPUR
GUWAHATI 781006
9:THE BRANCH MANAGER
STATE BANK OF INDIA
RANGIA BRANCH
P.O. AND P.S. RANGIA
DIST. KAMRUP
ASSAM
PIN 781354
10:THE BHARATI AIRTEL
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER
GURGAON CITY (DELHI AND NCR) UNITECH WORLD CYBER PARK
SECTOR 39
TOWER A
4TH FLOOR
GURGAON 122001
HARAYANA
(DELHI AND NCR)
11:THE BHARATI AIRTEL
NE CORPORATE OFFICE
Page No.# 3/20
BHARTI HOUSE
G.S. ROAD
SIX MILE
KHANAPARA
JAYA NAGAR
GUWAHATI 781022
ASSAM.
12:THE SECRETARY
GOVERNMENT OF INDIA
DEPARTMENT OF TELECOMMUNICATION
MINISTRY OF COMMUNICATIONS
12TH FLOOR
SANCHAR BHAWAN
20
ASHOKA ROAD
NEW DELHI
110001
Advocate for the petitioner(s): Mr. YS Mannan
Advocate for the respondent(s): Mr. D Das, Senior Advocate
Mr. K Das for respondent No.6,7,8 & 9
Mr. CKS Baruah, for respondent No.12
Ms. U Das, Additional Senior
Government, Assam.
BEFORE
HON'BLE MR. JUSTICE DEVASHIS BARUAH
ORDER
28.05.2024 Heard Mr. YS Mannan, the learned counsel appearing on behalf of the petitioner and Mr. K Das, the learned counsel appearing on behalf of respondent Nos.6, 7, 8 and 9. Also heard Mr. D Das, the learned senior counsel appearing Page No.# 4/20 on behalf of respondent Nos.10 and 11, Ms. U Das, the learned Additional Senior Government Advocate, Assam appearing on behalf of the State respondents as well as Mr. CKS Baruah, the learned CGC appearing on behalf of the respondent No.12. In Addition to that, this Court has also heard Mr. GK Singh, the Chief Manager of State Bank of India, Rangia Branch. The Investigating Officer of Rangia Police Station Case No.944/2020 is also present before the Court.
2. The petitioner herein is a senior citizen, who would be presently 66 years old. He retired as an Assistant Teacher in the year 2018 and on 17.04.2019 his pensionery benefits amounting to Rs.10,67,600/- was deposited to his Bank Account bearing No.10958225308 maintained in the State Bank of India, (for short, the SBI) Rangia Branch. Admittedly, the petitioner herein gave the Mobile Number to the SBI which belonged to his daughter one Tulika Deka. On 09.10.2020, when the petitioner went to withdraw an amount of Rs.5000/- from his bank account, he was surprised to learn that the said bank account had only Rs.69.61.P/-. Immediately, thereupon, on 09.10.2020 itself, an FIR was lodged before the Rangia Police Station which was registered as Rangia Police Station Case No.944/2020 under Sections 420/379 of the Indian Penal Code and subsequently Sections 120(B)/419/468/471 IPC read with Section 66(C)/66(D) of the Information Technology Act, 2000 were added.
3. On the same date, i.e. on 09.10.2020, the Chief Manager of the SBI Rangia Branch was informed that an amount of Rs.8,95,024/- had been fraudulently withdrawn from the petitioner's account which aspect of the matter was duly acknowledged by the Chief Manager vide the communications dated 12.10.2020 Page No.# 5/20 stating, inter alia that processing is being carried out as per the SOP.
4. It is further seen that on the basis of the investigation so carried out by the Investigating Officer of Rangia Police Station, various persons were arrested on the ground that during investigation it revealed that the persons arrested were involved in the illegal and fraudulent transactions.
5. It is the case of the petitioner that the petitioner having duly informed the SBI on 09.10.2020 i.e. within a period of seven working days and the SBI having not reimbursed the said amount in terms with the Circular issued by the Reserve Bank of India dated 06.07.2017 and the approach to the Ombudsman did not result in favour of the petitioner, the instant writ petition was filed seeking a direction upon the respondents to recover the amount of Rs.8,95,040/- which was fraudulently transferred from the petitioner's bank account and to pay the said amount to the petitioner or direct the SBI to immediately compensate the petitioner by making payment of the said amount of Rs.8,95,040/- along with adequate interest; direct the service provider i.e. the respondent Nos.10 and 11 to adequately compensate the petitioner for commitment of fraudulent/disputed transactions online through their service; as well as also for a direction that the investigation should be carried out either by the State CID or by the CBI.
6. This Court finds it relevant to take note of Annexure-10 to the writ petition which is the statement of account of the petitioner in respect to the petitioner's bank account. The petitioner duly admitted that on 02.10.2020, the petitioner Page No.# 6/20 had withdrawn Rs.9500/- from the ATM. However, the remaining transactions thereafter from 02.10.2020 to 04.10.2020 were not carried out by the petitioner, except the amount of Rs.17,966/- which was transferred to the SBI Life Insurance on the basis of auto-debit system. It is the categorical stand of the petitioner that the petitioner neither at any point of time applied for internet banking nor had carried out any UPI transactions.
7. Pursuant to the filing of the instant writ petition, the Superintendent of Police i.e., the respondent No.3 had filed an affidavit-in-opposition stating, inter alia, as to how the investigation was carried out and it was mentioned that the money which was transacted from the petitioner's account were transferred to two numbers of accounts being 20366807543 and 113101021957, which belonged to one Soid Ahmed Laskar and one Rashid Ahmed Barbhuyan. It was further stated that the Police Authorities had taken prompt action and sent requisition to the concerned authority for freezing the Accounts to which the money was fraudulently transacted. Before further proceeding on the narration of the facts, it would be apposite to mention that on 22.01.2024, this Court enquired as to how much amount was lying in the freezed accounts held in Canara Bank. It was informed on 16.02.2024 that the amount lying in the accounts were a paltry sum of Rs.19,107.62p.
8. The SBI filed an affidavit-in-opposition on 22.04.2021 stating inter alia that the internet banking facility in the SBI can be activated through user self driven procedure by using ATM card details without submitting any physical application at the Branch. It was mentioned that the registration process is available in the SBI internet banking site. It was further mentioned that there was no deficiency Page No.# 7/20 or laxity on the part of the officials of the SBI. It was stated that on 03.10.2020 to 04.10.2020 various transactions were done in the petitioner's account through internet banking and UPI resulting to the decrease of the petitioner's balance to Rs.69.19p. It was further stated that 9(nine) numbers of internet banking transactions were carried out with the help of a secured OTP which was successfully delivered to the petitioner's registered mobile number being 9954464365. In paragraph 7, the SBI authorities duly acknowledged that the petitioner's internet banking credentials were compromised as a result of the 9 numbers of fraudulent transactions which had taken place. It was further mentioned that all the frauds were merchant based transactions where the funds were remitted to a merchant "QUICK SILVER SOLUTIONS", a third party transaction and there were three unauthorized UPI transactions, amounting to Rs.5000/-, Rs.50,000/- and Rs.50,000/- on and between 02.10.2020 and 03.10.2020. It was mentioned that the petitioner had compromised his secret UPI PIN to the fraudsters. Further to that, OTP is not required in the UPI transactions, but only the secret PIN is required to log in to the UPI application. To the said affidavit, the statement of accounts of the petitioner was enclosed for the period from 02.10.2020 to 05.10.2020, which seems to tally with Annexure-10 to the writ petition as referred above. In addition to that, the SMS DLR report from 02.10.2020 to 04.10.2020 was enclosed as Annexure-B. This document is essential, taking into account the stand which was taken by the respondent SBI during the course of the hearing, inasmuch as, Mr. K Das, the learned counsel appearing on behalf of the SBI submitted that the OTP for payment of the SBI life was issued and without the OTP, the SBI Life could not have auto-debited the said amount and on the basis of that had tried to justify that the petitioner was negligent. However, a perusal of the SMS DLR report, Page No.# 8/20 and more particularly at Sl.No.5, shows the delivery status of the OTP. It is seen that the delivery status of the SMS was failed. In addition to that another very interesting aspect of the matter which was submitted during the course of the hearing is that there was an ATM transaction being carried out for an amount of Rs.20,000/- on 03.10.2020 and, therefore, submitted that the said amount of Rs.20,000/- could not have been withdrawn by way of ATM withdrawal without the debit card. The said stand seems to be misconceived, inasmuch as, it is seen from the very SMS DLR report that the said amount had been withdrawn from the ATM as YONO Cash. The reason being that during the course of the hearing, this Court enquired with the Chief Manager, SBI Rangia Branch as to how the YONO Cash is generated and for that purpose whether the ATM card is at all required. It is submitted that the YONO Cash is generated on the basis of a YONO application and in the said YONO application after incorporating the necessary details, a particular OTP is given and on the basis of that OTP, the said amount can be withdrawn from any of the SBI ATMs without the need of an ATM Debit Card.
9. This Court further finds it relevant to take note of a preliminary affidavit filed by the respondent Nos.10 and 11 raising the maintainability of the writ petition on the ground that the writ petition was not maintainable against the respondent Nos.10 and 11 as they are neither a State nor other Authorities. This Court taking into account that the respondent Nos.10 and 11, while providing the service to the public, exercises public functions is of the opinion that the present writ would definitely be maintainable against them. In addition to that the maintainability of the writ petition was questioned on the ground of disputed facts being involved. The said stand is misconceived inasmuch as, the facts Page No.# 9/20 delineated supra as well as infra would show otherwise.
10. The SBI further filed an additional affidavit pursuant to an order being passed by this Court on 16.11.2023. In the said additional affidavit which was filed on 20.11.2023, it was explained as to how facility of internet banking can be activated without Branch visit, as per the Circular of the SBI dated 28.04.2015. In addition to that, the respondent SBI had also produced the internet banking activation details of the petitioner as Annexure-D. From a perusal of the said document, it reveals that the user name so assigned to the petitioner's Bank Account was tulikadeka22, and the entire transactions were carried out on 3rd and 4th October, 2020, leaving aside an amount of Rs.5000/- which was done on 02.10.2020.
11. The records further reveals that on 21.11.2023, the respondent Nos.10 and 11 filed an affidavit-in-opposition. The said affidavit-in-opposition brings on record various documents which are very pertinent to the instant dispute. The said documents have been collectively enclosed as Annexure-A series. The first document is an enrollment form of the daughter of the petitioner wherein the address was duly mentioned as village Murara, PO Rangia and the date of birth was mentioned as 11.04.1990. Along with the said application form, the identity card issued by the Rangia Higher Secondary School and an electricity bill issued by the APDCL authority was enclosed. It is also seen that another person impersonating the daughter of the petitioner submitted an application on 01.10.2020 at 15.41 Hrs. for SIM Swap. The date of birth of the imposter was mentioned as 01.01.1985 and from a perusal of the said application, it is seen Page No.# 10/20 that the said application was submitted at Guwahati though the SIM Card belonged to a person residing at Rangia. Along with the said application, an Election Commission of India Photo ID Card was submitted, wherein the address mentioned as village Hiragota PS Rangia. There is another application which was submitted by the actual subscriber to the SIM Card i.e. the petitioner's daughter on 04.10.2020 at 10.52 Hrs. at Rangia. The document further shows that the application was duly received by the Point of Sale Agent of the respondent No.10 along with an Electoral Photo Identity Card, which belonged to the daughter of the petitioner, wherein the address was mentioned as village Murara, PS Rangia, Sub-Division Kamrup.
12. Pursuant to the affidavit so filed by the respondent Nos.6 to 9 and respondent Nos.10 and 11, the petitioner filed two affidavits-in-reply. In reply to the affidavit filed by the respondent Nos.6 to 9, the petitioner enclosed the Circular issued by the RBI dated 06.07.2017, wherein Clauses 6, 7 and 8 had been referred to. Taking into account, its relevance for the purpose of the present order to be passed, the Clauses 6, 7 and 8 are reproduced hereinunder:
"Limited Liability of a Customer
(a) Zero Liability of a Customer
6. A customer's entitlement to zero liability shall arise where the unauthorised transaction occurs in the following events:
(i) Contributory fraud/ negligence/ deficiency on the part of the bank (irrespective of whether or not the transaction is reported by the customer).
(ii) 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 unauthorised transaction.
(b) Limited Liability of a Customer Page No.# 11/20
7. A Customer shall be liable for the loss occurring due to unauthorized transactions in the following cases:
(i) In cases where the loss is due to negligence by a customer, such as where he has shared the payment credentials, the customer will bear the entire loss until he reports the unauthorised transaction to the bank. Any loss occurring after the reporting of the unauthorized transaction shall be borne by the bank.
(ii) In cases where the responsibility for the unauthorized electronic banking transaction lies neither with the bank nor with the customer, but lies elsewhere in the system and when there is a delay(of four to seven working days after receiving the communication from the bank) on the part of the customer in notifying the bank of such a transaction, the per transaction liability of the customer shall be limited to the transaction value or the amount mentioned in table 1, whichever is lower.
Table 1 Maximum Liability of a Customer under paragraph 7 (ii) Type of Account Maximum liability (₹) · BSBD Accounts 5,000 · All other SB accounts 10,000 · Pre-paid Payment Instruments and Gift Cards · Current / Cash credit/ Overdraft Accounts of MSMEs · Current Accounts/ Cash Credit/ Overdraft Accounts of individuals with annual average balance (during 365 days preceding the incidence of fraud)/ limit up to Rs. 25 lakh · Credit cards with limit up to Rs. 5 lakh · All other Current/ Cash Credit/ Overdraft Accounts 25,000 · Credit Cards with limit above Rs. 5 lakh Further, if the delay in reporting is beyond Seven working days, the customer liability shall be determined as per the bank's Board approved policy. Banks shall provide the details of their policy in regard to customers' liability formulated in pursuance of these directions at the time of opening the accounts. Banks shall also display their approved policy in public domain for wider dissemination. The existing customers must also be individually informed about the bank's policy.
8. Overall liability of the customer in third party breaches, as detailed in paragraph 6
(ii) and paragraph 7 (ii) above, where the deficiency lies neither with the bank nor with the customer but lies elsewhere in the system, is summarized in the Table2:
Page No.# 12/20 Table 2 Summary of Customer's Liability Time taken to report the Customer's Liability (₹) fraudulent transaction from the date of receiving the communication Within 3 working days Zero liability Within 4 to 7 working days The transaction value or the amount mentioned in table 1, whichever is lower Beyond 7 working days As per bank's Board approved policy The number of working days mentioned in table 2 shall be counted as per the working schedule of the home branch of the customer excluding the date of receiving the communication."
13. Clause 12 of the said RBI Circular is also very relevant as it categorically mentioned that the burden of proving the customer liability in case of unauthorized electronic banking transactions shall lie on the bank.
14. In so far as the reply which was filed against the affidavit-in-opposition filed by the respondent Nos.10 and 11, the petitioner reiterated his stand which has been stated in the writ petition and deny to those statement and allegations which were contrary to the contents of the writ petition and further enclosed the Circular of the Government of India, Ministry of Communication, Department of Telecommunication dated 01.08.2016. Clauses (ii) and (iii) of the said Circular being relevant is reproduced hereinunder:
"(ii) The person as PoS shall match the copy of PoI document submitted by the subscriber with its original and also record a declaration on it, along with his/her name, Page No.# 13/20 signature, date, PoS code and PoS stamp containing address, that he has seen the subscriber and matched the copy of PoI document with its originals. Only after this activity, new SIM card may be issued to the subscriber.
(iii) before activating of new SIM card, the employee of the Licensee who is activating the new SIM card shall verify that the details of PoI document submitted by the subscriber are matching with the records available with the Licensee and also record a declaration to this effect on the copy of POI document under his/her name, designation and signature with date."
15. Taking into account the specific stipulations contained in the Circular of the Department of Telecommunication, Government of India, this Court vide detailed order dated 12.03.2024, impleaded the Union of India as respondent No.12 to the instant proceedings and directed the respondent No.12 to apprise this Court on the basis of the materials on record as to whether there has been any violation by the respondent Nos. 10 and 11 to its instructions dated 01.08.2016 in respect to the present case by filing an affidavit.
16. An affidavit-in- opposition was filed by the Assistant Director General (Compliance), Assam LSA, Department of Telecommunication, Ministry of Communications, whereby a detailed report was submitted. In paragraph No.3 of the said affidavit, it was stated that as regards Clause (iii) of the Circular of the year 2016, there was non-compliance to the said clause. In addition to that, in the said affidavit-in-opposition, a Circular is also enclosed as regards alternate digital KYC process for issuing new mobile connections to the subscribers.
17. Taking into account the above, this Court had heard the matter on 22.05.2024 and in view of the various contentions raised, pertaining to the investigation so carried out by the Investigating Officer of the Rangia Police Page No.# 14/20 Station Case No.944/2020 and also to understand the intricate details pertaining to internet banking and mobile banking, this Court sought the presence of the investigating officer of the Rangia Police Station. Today, the Investigating Officer of the Rangia Police Station is present. He apprised this Court that the charge- sheet had already been submitted, however, leave has been taken from the Court for submitting a supplementary charge-sheet.
18. During the course of the hearing, this Court enquired from the Investigating Officer as to how the investigation was carried out and what transpired therefrom. The Investigating Officer submitted that during investigation it came to light that the arrested accused persons taking the benefit that the petitioner is a senior citizen somehow managed to get the ATM Debit Card details as well as the ATM PIN. Thereupon, the arrested accused persons went to a CSP (Customer Service Point) of a Bank and obtained the mobile number in connection with the bank account of the petitioner. It also came to light during investigation that these accused persons called up the petitioner and informing him that certain amount is to be deposited in his account sought for the name of the person whose mobile number the petitioner had put in his bank account. Upon being able to get that information from the petitioner, the accused persons, obtained the fake electoral Identity Card of the same name of the petitioner's daughter and thereupon managed to get a fresh SIM by way of SIM Swap. It also came to light during investigation, that the said amounts were withdrawn in the name of "Quick Silver Solution", a gift card solution provider through Dark Net Facility and, thereupon, 20% of the said amount was retained by another accused person, who is yet to be apprehended and the remaining amount had been transferred to the arrested accused Page No.# 15/20 persons, who had in the meantime, already transferred the said amount to some other accounts, which could not be traced. He further submitted that upon investigation, the charge-sheet has been submitted. But as the person who took the 20% was yet to be apprehended, a request had been made for further investigation.
19. Today, during the course of the hearing, the Chief Manager of SBI Rangia Branch was also present, wherein he explained as to how the internet banking facility could be availed without a branch visit. He further submitted that there was no fault on the part of the bank, which resulted in the fraudulent transactions and in fact, it was the fault on the part of the Airtel authorities for permitting the sim swapping without proper verification. The learned counsel appearing on behalf of the SBI also joining the Chief Manager, submitted that the petitioner had also compromised certain details, else the Debit card details, as well as the PIN Number could not have been obtained by the accused. It is under such circumstances, the learned counsel appearing on behalf of the SBI submitted that there is no fault on the part of the SBI and as the petitioner had compromised the details, it is on account of that, the petitioner has to be also blamed for the loss suffered by him.
20. I have also heard Mr. D Das, the learned senior counsel appearing on behalf of the respondent Nos.10 and 11, who placed reliance on an additional affidavit which was filed on 27.05.2024, wherein it has been stated as to how pursuant to a notice under Section 91 of the Cr.P.C., the officials of the respondent No.10 had duly replied. However, there is no mention in the said additional affidavit that there is any prescribed written protocol or set of Page No.# 16/20 instructions by which it is mandatory on the part of the Airtel authority to issue a message to a subscriber when an application is filed for SIM Swapping. There is no mention in the said additional affidavit as to what is the protocol followed in the circumstance the message is not delivered or the delivery status fails.
21. The above issues which had cropped up in the instant proceedings would require further deliberation, inasmuch as, it is a very pertinent issue in the day to day life of the citizens of this Country who have bank accounts and also provide their mobile details. What safeguards the DOT authorities would be taking against the infraction to the guidelines and whether the Bank would be solely responsible if there is also a contributory fault on the part of the mobile licensee which led to the illegal and fraudulent transactions happen. This Court has also perused the charge-sheet and the said charge-sheet in the opinion of this Court is far from being satisfactory, taking obviously into account that these cyber crime activities require the assistance of technical personnel who knows as to how these cyber crimes are being committed. Therefore, in the opinion of this Court, prima facie, the Rangia Police Station Case No.944/2020 has to be further investigated upon, more so, taking into account what was stated by the Investigating Officer during the course of hearing. Accordingly, this Court directs the Special Superintendent of Police, CID, Cyber Crime to take up the further investigation in respect of Rangia Police Station Case No.944/2020 and to submit a report before this Court on 18.07.2024. A copy of the instant order be furnished to Ms. U Das, the learned Additional Senior Government Advocate, Assam to take appropriate steps in that regard by the Registry.
22. This Court in the previous segments of the instant order had taken note of Page No.# 17/20 the Circular dated 06.07.2017 of the Reserve Bank of India and more particularly, to Clauses 6, 7, 8 and 12. The counsel appearing on behalf of the petitioner submits that this is case falling within the ambit of Clause 7(ii) whereas, the counsel appearing on behalf of the SBI submits that this is a case falling under Clause 7(i). A perusal of both the clauses i.e. clauses 7(i) and 7(ii), show that in the case where loss is due to negligence of the customers, such as, where he shared the payment credentials, the customer will bear the entire loss, until he reports the unauthorized transaction to the bank and any loss occurring after the reporting of the unauthorized transaction shall be borne by the Bank. However, in the circumstances falling under Clause 7(ii) where the responsibility for the unauthorized electronic banking transaction lies neither with the Bank nor with the customer, but lies elsewhere in the system and when there is a delay of four to seven working days after receiving the communication from the Bank on the part of the customer in notifying the Bank of such transaction, the per transaction liability of the customer shall be limited to the transaction value or the amount mentioned in Table-1 whichever is lower. In the instant case, taking into account that it is a savings bank account as per the Table-1, the liability of the customer would be Rs.10,000/- or the transaction and value, whichever is lower, provided Clause 7(ii) applies.
23. This Court also takes note of Clause 8 which stipulates the overall liability of the customer in third party breaches, as detailed in paragraph 6(ii) and paragraph 7(ii) above, where the deficiency lies neither with the Bank nor with the customer, but lies elsewhere in the system, it would be in terms with Table-
2. In terms with Table-2, if the reporting is done within four to seven working days, it shall be either the transactional value or the amount mentioned in Page No.# 18/20 Table-1, whichever is lower.
24. In the instant case, a perusal of the materials on record and after hearing the learned counsels appearing on behalf of the parties, it transpires that the petitioner herein had duly informed the respondent SBI on 09.10.2020 and this aspect of the matter is apparent from a perusal of Annexure-9 to the writ petition, which is a due acknowledgement by the Chief Manager, SBI Rangia Branch. Under such circumstances, the reporting was done within a period of four to seven working days. There is no material which would show that the petitioner had shared the payment credentials as would be apparent from the investigation, which has been carried out. From the investigation, it appears that the fraudsters had somehow managed to obtain the debit card details as well as the PIN number. Clause 12 of the Circular dated 06.07.2017 imposes the burden upon the SBI to prove that there was a negligence on the part of the petitioner. Merely stating that the petitioner may have compromised the details would not be sufficient. In addition to that this is not a case where OTP details were shared by the petitioner. The present is a case, where the fraudsters have not only obtained the ATM Debit Card details, ATM PIN Number, but also fraudulently applied for SIM Swap which the respondent Nos.10 & 11 allowed in conflict with Clause (iii) of the Circular of DOT. Thereafter, these fraudsters had opened the internet banking facility as well as the Yono application and thereby siphoned off the money. As regards the UPI payments, the same as could be gathered during the hearing could have been activated with the SIM Card being available.
25. Under such circumstances, in the opinion of this Court as the transactions Page No.# 19/20 in question had happened on account of a third party breaches, Clause 7(ii) would be applicable for which the petitioner is entitled to the amount which was fraudulently transacted through internet banking as well as by UPI transactions, including the ATM withdrawal made through YONO Cash, after deducting the amount in terms with Table-1.
26. This Court, therefore, directs the respondent Nos.6 to 9 to credit the amount after making necessary deductions in terms with Table-1 to the account of the petitioner within 10(ten) days from the date of a certified copy of this order is served upon the Chief Manager of the SBI Rangia Branch.
27. This Court directs the said payment to be made in order to resolve the miseries the petitioner had undergone on account of the fraudulent transactions, that too, a senior citizen, whose entire pensionery benefits have been swindled away by such illegal, means.
28. This Court, however, keeps the matter pending in order to adjudicate as to what further course of action can be taken so that the SBI who is also not at fault can be recompensed taking into account that there appears to be prima facie fault on the part of the respondent Nos.10 and 11. This aspect of the matter would require a further detailed adjudication.
29. This Court also directs the respondent No.12 to apprise this Court on the next date as to what steps are taken against those mobile licensees by the Department of Telecommunication, who violates the instructions contained in Page No.# 20/20 the Circular dated 01.08.2016.
30. List again on 18.07.2024.
JUDGE Comparing Assistant