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(F.A. No.312/2017) that complainant is legally entitled to credit the entries in the pass book. Complainant sought relief of credit of sum of Rs.10022.90/-(Ten thousand twenty two rupee & ninety paise) in the account of complainant and complainant also sought additional relief of payment of Rs.50000/-(Fifty thousand) as damage alongwith litigation costs. Prayer for acceptance of consumer complaint sought.

3. Per contra version filed on behalf of opposite party No.1 pleaded therein that complainant did not approach learned District Forum with clean hands and suppressed the material facts. It is pleaded that complicated question of law and facts are involved in the present consumer complaint. It is pleaded that complainant had used the ATM of PNB Kandaghat and it is denied that no money was withdrawn by complainant from ATM machine. It is further pleaded that opposite party No.1 sought the report from opposite party No.2 and transaction was found to be successful. It is pleaded that complainant was legally competent to withdraw a sum of Rs.40000/-(Forty thousand) from State Bank of India group ATMs and complainant was legally competent to withdraw an amount of Rs.10000/-(Ten thousand) from other banks. Prayer for dismissal of consumer complaint against opposite party No.1 sought.

(F.A. No.312/2017) shown in withdrawal receipt. As per CCTV footage annexure- C5 at about 3.23 P.M ATM was operated but no money was withdrawn from ATM machine. Hence plea of PNB is defeated on the concept of ipse dixit (An assertion made without proof).

13. Submission of learned Advocate appearing on behalf of Punjab National Bank that as per affidavit given by Shri B.D Sharma Branch Manager Ext.OPW2-I successful transaction was effected from ATM machine of PNB at 3.23 P.M on dated 29.12.2015 and on this ground appeal be allowed is decided accordingly. State Commission is of the opinion that Shri B.D. Sharma Branch Manager was not present in ATM machine on dated 29.12.2015 at 3.23 P.M. State Commission is of the opinion that Shri B.D Sharma has filed affidavit on the basis of derived knowledge. Although written complaint was filed to Punjab National Bank by complainant but inquiry report of Nodal Officer PNB not placed on record. No reasons assigned as to why PNB did not place on record inquiry report of Nodal Officer and why PNB did not file affidavit of Nodal Officer of PNB. Hence adverse inference is drawn against PNB for withholding material evidence i.e. Enquiry report of Nodal Officer. State Commission is of the opinion that it is not expedient in the ends of justice to allow the appeal simply on the affidavit of Shri B.D. Sharma Branch Manager because Shri B.D Sharma Punjab National Bank Versus Rita Devi & Anr.

(F.A. No.312/2017) is not eye witness of incident and his affidavit is filed on the basis of derived knowledge only. Even PNB did not file affidavits of Cashier and Accountant who have personally reconciled the amount of ATM machine of PNB on dated 29.12.2015. Even no Switch Centre report placed on record by PNB Authority.

14. Submission of learned Advocate appearing on behalf of Punjab National Bank that CCTV footage was destroyed after three months and on this ground appeal be allowed is decided accordingly. Complainant has placed on record CCTV footage of ATM machine dated 29.12.2015 at 3.23 P.M. It is proved on record that complainant has also filed FIR in the police station and CCTV footage was supplied by the bank to Investigating Officer in a criminal case. PNB did not file any affidavit of SHO in order to prove that CCTV footage of ATM machine was not produced by the bank to Investigating Officer. Hence plea of Punjab National Bank that CCTV footage was destroyed is defeated on the concept of ipse dixit (An assertion made without proof). Even PNB was under legal obligation to retain CCTV footage of ATM machine dated 29.12.2015 when complaint was pending before Nodal Officer PNB and before District Forum.

15. Submission of learned Advocate appearing on behalf of State Bank of India that on the basis of affidavit filed by Shri Liaq Ram Branch Manager complaint filed by Punjab National Bank Versus Rita Devi & Anr.

(F.A. No.312/2017) complainant be dismissed is decided accordingly. State Commission is of the opinion that Shri Liaq Ram has filed affidavit on the basis of derived knowledge and Shri Liaq Ram was not present in ATM machine at the time of operation of ATM machine by complainant. In view of above stated facts point No.1 is decided accordingly.