Telecom Disputes Settlement Tribunal
State Bank Of India vs Ridit Raj Dutta & Anr on 21 December, 2021
Author: Shiva Kirti Singh
Bench: Shiva Kirti Singh
TELECOM DISPUTES SETTLEMENT & APPELLATE TRIGUNAL NEW DELHI! Dated. Saas December, 2021 Gyber Appesi Ne. 3 of 20719 State Bank of india . Appellant VYeraus Ridit Rai Dutta & Anr. . Respondents BEFORE : HONSLE MR. JUSTICE SHIVA RIRTI SINGH, GHAIRPERSON NON' BLE MR. SUBODH KUMAR GUPTA, MEMBER For Appellant > MrS.L Gupta, Advocate. Mr Arjun Gupta, Advocate. Mr. Aditya Vikram Gupta, Advacate. For Respondents * Ms. Pravaana Gautam, Advocate Myr, Pawan Shukla, Advocate Mr. Jitesh P taupta, Advasate 2 By Subodh Kumar Gupta, Member - Heard Learned Counsel for the appellant and Learned Counsel for the respondents. Z. The present appeal is Hed under section 5Y of the Information Technology Act, 2600 against the omer dated 17.07.2078 Ompugned order} passed by fhe Adiudicating officer, Government of Assam, Guwahati in the complaint no. TT 61/201 7/294 thereby ordering the Bark (SBI: State Bank of India, Appellant herein) to credit an arnount of Rs.6.97 980.42 Qvith aligible inferest amount as per the orevailing interest rate for the period ) to the account of the respondent 2 éwho is also father af the complainant before the Acijudicating officer} within 15 days of the lrapuaned order. This amount has been withdrawn from fhe saving bank account of respondent 2 by more than 600 debits between 06.08.2017 to 28.06.2017 for making the payments fo various e-commerce siies. The transactions from the account has been made by using the details of the ATM card and the secret PIN in the exclusive knowledge of the respondent. The respondent has questioned the transactions on the ground that he had not received any SMSs of the said - transactions on his mobile phone. 3. The brief facts rlievant for the present appeal are as under : " On request of Respondent 2 (Mr Jogannath Dutta), the appellant bank has issued ATM sard fo respondent 2, who has a saving bank account bearing no 10898227748 with the Golaghat branch of the appellant bank (SBN. Iie said by the appellant that respondent 2 Js a well educated person, a ratived teacher, was using the ATM card since a lang Ume. - On 12.07 2017, respondent 2 compisined to the concerned branch of the appaiant bank that the iransactions made in his account since 06.05.2017 with the use of ATM card are nat made by him and these are egal and unauthorised requesting the bank to replenish the funds in his account which have been ilepally debited from his account. The passbook of respondent ¢ was updated and Re disowned more than 800 debits in his account between 06.06.2017 to 3 28.00.2017. Entries / debs disowned were thase making the payments of purchases made fram infernet / e-conmierce / Gn line sites, me Complainant / respondent 1 (who is son of respondent 2) Hed complaint dated 24.08.2017 with the Banking Ombudsman RBI Guwahati alleging that he along with his father (regporident 2) visited ATM booth on 18.07.2017 to withdraw cash but carne to know that there is no balance in ihe account. On updating ihe passhook, respondent 2 found internet transactions for the purchase of articles from Sipcaricom, amazon.com, moneymint.com, fasticket.com, fearbuy com, paload.in, charqediuin ete. ~ Respondent 2 made cash withdrawal of Re. 4000/-, Rs, 6000/- and Rs. 5000/- by using the ATM on 06.05.2017, O7 06.2077 and 19.06.2047 respectively. Responclent 2 alleges that withdrawal slip fromm ATM machine was not received. Furthar he alleges having not received the SMS alert far any of the questioned online transactions. The complainant (respandent herein) jook. up the matter with the appellant bank fappaiiant herein} anc questioned more than 600 payments to varicus e-commerce sites fron his account by using the debit card. The complainant aiso fled complaint with the Police. ~ > (n 28.07.2017, the comolginant ded complaint with the Adjudicating Officer under section 46 of ihe IT Act. The apostant Bank (Appellant) filed its reply with records of complaint and the decision of the Banking Ombudsman along with the logs of the payments. As per the Appellant bank, the Adiudicating Officer serit notices ta e-commerce sites and received the replies but has not provided the copy of the same to the Appellant bank. - On 12.2018, the appaliant bank requested Adjucicaling Offfoer to defer the Hearing by two weeks which was scheduled for 17.12.2078. Also appellant requested Adjudicating Officer to supply various letters fed by complainant (espondent herein} along with certified copies of replies received frarn on-line vendors and copy of report of investigation department. However Adjudicating officer passed the impugned order no IT61/2017/234 dated 4 71.07.2019 and is alleged to have not provided sufficient opportunities to the Appellant to defend Nsel, Henoa the present aopeal before the Tribunal, 4. After hearing the parties in defall and taking into consideration the defence of the Bank, (which is the appellant herein} and all the relevant decuments, the Learned Adjudicating Officer, by the impugned ormler dated 11.01.2019 has allowed clairn {as above) of the complainant who is the respondent herein. Admittedly nothing bas been paid by the appellant bank (SAR so far, os The contention of the appellant is that i has sent all the SMSs through its server ta the mohile of the Account halder Though so claimed by the apoellant bank, however, a large number Of SMSs were nat received on the mobile of the account holder because of inadequate mernory of tha mobile as the account holder is alleged to be not deleting the old SMSs fram his mobile. Further as submitted by the appellant bank that ATM machine aiso indicates the remaining balance feft inthe account after each transaction of cash withdrawal using the ATM card and the PIN. However the respondent' comolainant herein denies having received any printed slip after a jaw instances of cash withdrawal made by him.at ATM machine using his ATM card and the PIN. The stand of appellant that ATM machine always gives the printed silo indicating the remaining balance left in the account after the withdrawal transaction is completed may not always be correct under all situations, for instance, the case where the ATM machine hae enough cash ta disburse but runs out.af caper fo print any alip indicating remaining balance eft. Ne important to note.here that bulk of the above said transactions . which are unusually large in numbers. (over 800 debit transactions} aver a small period of time (06.05.2017 fo 28,06,2017), have bean made through largely e-commerce barring a féw instances of cash withdrawal by respondent using his ATM card and FIN details. 8. Following are the gist of pertinent observations of significance made after hearing both the parties, going through the various documents, records and the impugned order dated 17.07.2079 passed by the Learned AO (Adijudioating Officer) : } The respondent/SBI Account holder is a retired Head master of a local high schoo! and is getting his pension credit in hie SB account 106xxxxl748. Ne uses his debit card for ATM § fransactions and has never conducted any POS or internet banking transactions. As per respondent, he tried to withdraw cash from the SBI Golaghat main branch ATM on 16.07 2017 which was rejected by the ATM stating Insufficient funds. Thereafter he visited the SBI Golaghat branch fo enquire about i. SBI officials in the branch asked him to update the passbook of his account, Upon updating, « had come to the notice that money in his account were siphoned off by means of fraudulent transactions. Hea had brought the same to the knowledge of the bank officials. H was also brought to ihe notice of the account holder that a further debit of Rs. 1,14,800/- 6 bs done as the fraudster sid transaction beyond the available limit. Upon the account holder's complaint that he dic) net avail any over draft facility, the bank blocked the account upon bis complaint. For proper investigation of the matter, ari FIR no 47G/17 was lodged ifs 378, 42D of IPC dated iB.07.2017 af Galaghat Police station. The account holder also filed complaint with the Banking Ombudsman (BO) on 25.08.2017 who held a conciliation meating an SO.10.2017 and advised the account holder to go to higher authority as the meatier required detailed investigation beyond the purview of BO. The account holder filed complaint with the Adjudicating Officer u/s 46 of tne IF Act-2000 on 28.07 2017. AS evident from the materials on recard, Adjucicating Offioer gave sufficient opportunities and tine In syne with Principles of Natural justice and reasonable opportunity to all the cancernect stakeholders including the account Aelde, the Appsiiant bank SBI and Police officials investigating the case to present thar cases and heard them in person several times examining all ihe papers made available by different stakeholders. Detailed hearings were held giving equal and adequate opportunitias fo present and defend their case. Ns fnporiant fo note that the Adjudicating Officer isgued notions io the appellant bank SBI Golaghat branch for submitting their replies which was duly submifted through written stalemenis on 10.10.2017. Aciucicating Officer also issuec aotice to all ihe e-oornmanies invalvad and they had submitted their reports. He conducted several rounds of hearings on the case daled 16.08.2077, 16.01.2018, 05.03.2078, OB.O8.2018, 26.10.2018, OS.1b2018, 12.72.2018 and 26.12.2018 respectively wherein recresentatives of the appellant bank SBI, account holder (espondent) and Police officials from Golaghat district were present as and when required. On 16.03.2018, the AO sent a letter to ADGP CID HO, Agearn Poliss to investigate the case. The investigation report was submitted by SP Golaghat of Assam Police on 17.04.2018. which states that "Unknown miscreants withdrew 8 the amount without the knowlsdge of account holder and could not find any clue'. The report was duly examined by the AQ and it found that Police have not carried out cyber forensic type of investigation or ofher available details which could have given more insights into such kinds of cyber crime, The AQ also examined the report submitted! by the appellant bank which included SMS logs of POS transactions (08.05.2017 {fo 08.05.2017) and ATM transactions (G1 .56.2017 to 25.08.2017). SBI in their report stated that for transactions upto As.2000/- carried out through PayU and Bil Desk PG does not raquire OTP for authentication and as per their report over 600 such transactions of values joss than Rs. 2000/- were transacted. SBI also alleged the account holder sharing AMM card information with Grd pany (which the account holder denied). The important question that why the SBI technolooy clatforrn cauld not identify / detect unusual transaction patterns to alert the accaunt holder or confinn if these transactions are being done by Rin' continue to ramain unanswered yet Therefore deficiency / negligence on the part of Apoellarnt bank cannot be ruled aul. While examining SMS fogs, AQ found that POS and ATM transactions were though sent to the RMN (Registerad Mobile Number} of the account Raider buf were not delivered being shown as exolred in the server jog racort of the agpallani bank SSL This clearly suggests thaf the account holder didn't receive the SMS of the transactions done by himself on ATM and the POS tyne of transactions carried oul by fraudster during ihe said period, As alleged by the Appellant bank that respondent might have compromised his authentication credentials such as ATM PIN, cand number, DoB (phone phishing or other type of cyber attack). However, any such transactions using other method such as POS and Internet banking requires permission / enabling of services ete with the intervention of bank officials / customer care section of the bank but the bank hag nol furnished any such information regarding faciiitating the respendent with net banking faculty in his account. 8 AS per cl S of the RBI guidelines no : RBMUSd17-18, dated 06.07.2017, the SMS alerts shall mandatorily be sent to the customers to the account holder's RMN (Registered Mabile Number), ff is observed that SMS alerts of the fraud transactions were not delivered to the RMN of ihe respondent thus he hac no means of knowing the ongaing transactions. The banking system -
after observing eo many unscrupulous Pansactions should have been able to alert the customers or could have siopped transaction in the account afler few numbers of continuous transactions which were unusual in nature by informing the account holder about iis authenticity through available channels. in case of reat hanking system for wrong use of credentials for foa@qing Inte internet bank account for consecutively for three tries, the system automatically disables the account for 24 hre and activate the account only after accurate details oan be provided by the cuatotier 8} Based on ihe lag report submitted by the appellant bank, it was evident that bank was aware of non delivery of SMS of transaction details to the designated mobile of the account holder N would have been prudent on the part af the bank to inform the account hoider about the non delivery of SMS continuously during the period when such unusual fraud transactions were happening. The negigence on the part of the bank ta infarm the account holder and lack of assessment capability of financial frauds happening In his account over the period are rnajor deficiency of ihe banking system of SBI, which contributed towards these fraudulent transactions.
{iv} hag been observed that all the deti-traud transactions was conducted by outsiders or thin] party using various e-commerce / payment gateway websites such ag flipkari.com, SNazcai.cam, moneymini.com, fastticket.com, nearbuy.carn, chargedujn etc. in this case, the account holder should have absolufaly no liability in circumstances where the bogus / uriguthorised transaction occurs because of the carelessness. of the banking system, which is a clear indication of contributory negligence of the banking system for this fraud to happen.
iv} Further there is a debit of an arnount of As.1,34,500/- oy the SBI, Golaghat by way of providing averrafi faciity in the respondent account as the fraudster carried transactions beyond ihe available balance saving arrunt, whereas the respandant did not avail any facility of overdraft or cash credit firnit in his saving account . NH indicates that fraudster activated such overdraft or cash credit limit an thie account and carriad iransantions. The inability of bank to prevent the fransactions fo the tune of another Ae.114,5004 by the fraudster when the respondent saving account was axhausted appears to be case of possible contributory fraud / negligence.
8We, find no good reason to deviaie from the impugned order passed by Learheci Adjudicating Officer, there Is no infirmity or illegality in the impugned order warranting our interference thus the sak] Cyber appeal is dispasad of without any modification In the impugned order, If the paymants so due in favour of the account holder (escendent) ave not made within 27 days, the respondent shall approach the Learned Acjudicating Officer and seek execution of the judgement and onder passed in iis favour. Such applications, if filed, shall be disoosed of expeditiously and in sccardance with Law.
The appeal is disposed of In the aforesaid terms.
~ --, ose a vas < "> Ww \ iS... Singh, J} f < \ co AG Ghairpersor \uN SS ee iSubadh Kumar Gupta} Member