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2019 DIGILAW 695 (CAL)

Uttam Kumar Mondal v. State of West Bengal

2019-07-05

SHIVAKANT PRASAD

body2019
JUDGMENT : 1. In this revisional application the petitioner has assailed the order dated 07.6.2018 passed by the Chief Judicial Magistrate, Malda in Case No. 955C/17 thereby disposing of the petitioner's application filed under Section 156(3) of the Code of Criminal Procedure. 2. The brief facts leading to the instant case is that the petitioner is an account holder with the State Bank of India, Kaliachak Branch and is having a savings account bearing Account No. 11892090084. On 08.07.2017, at about 4:20 p.m. the petitioner with the intention to withdraw money from his account, visited the nearest Automated Teller Machine (ATM) at the Kaliachak Branch of the respondent bank by inserted his ATM card in the machine to withdraw the cash of Rs. 30,000/- (Rupees Thirty Thousand only) but unfortunately the petitioner was unaware of the fact that the said machine was out of order and so the transaction became unsuccessful and the petitioner could not withdraw the said cash. Guard attending to the ATM kiosk, told the petitioner that the said machine did not have cash and the petitioner was asked to withdraw cash from the adjacent ATM. Accordingly, the petitioner once again inserted his ATM card in an adjacent ATM machine and withdraw a sum of Rs. 10,000/- (Rupees Ten Thousand only) but to his shocking dismay, the petitioner after seeing the 'receipt came to learn that an amount to the tune of Rs. 40,000/- (Rupees Forty Thousand only) was deducted from the petitioner's account which included the sum of Rs. 30,000/- (Rupees Thirty Thousand only) due to malfunctioning of the machine. Thereafter, the issue was brought to the notice of the bank but the bank was not taking up his issue with seriously. So, the petitioner without further ado, on 17.07.2017 wrote a letter to the opposite party no. 2 bringing to his notice regarding the irregular deduction of cash from the petitioner's account. The opposite party no.2 did not pay heed to the said letter. So, the petitioner lodged a complaint with Baishnabnagar Police Station which complaint was diarized as G.D. Entry No. 1012/17 dated 18.7.2017. Seeing the lackadaisical approach of the police authorities is not acting upon the petitioner's complaint, a representation was made to Superintendent of Police, Malda requesting him to take appropriate action by directing his subordinates on 25.9.2017, but of no effect. Seeing the lackadaisical approach of the police authorities is not acting upon the petitioner's complaint, a representation was made to Superintendent of Police, Malda requesting him to take appropriate action by directing his subordinates on 25.9.2017, but of no effect. On 13.9.2017 the petitioner sent a notice to the opposite party no. 2, requesting for his assistance in resolving the petitioner's grievance since the petitioner had incurred monetary loss for no wrong of his but shockingly, instead of helping the petitioner and alleging that the petitioner had distorted the facts for his wrongful pecuniary gain. 3. Inaction on the part of the police authorities and non-cooperation of the opposite party no. 2 to help the petitioner compelled the petitioner to file an application under Section 156(3) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Malda which was registered as a Case No. 955C/2017 dated 25.9.2017, the Chief Judicial Magistrate, Malda by order dated 10.10.2017 directed the Sub-Inspector of Kaliachak Police Station to treat the petition under Section 156(3) of the Code of Criminal Procedure as a formal FIR. On 28.3.2018 Sub-Inspector of Kaliachak Police Station, Malda submitted his enquiry report in terms of Section 202 of the Code of Criminal Procedure and the report was submitted from guard that the bank authorities had stated that the ATM transaction money is deducted because of the fault in the machine are subsequently credited again. It can be seen from the report that the bank officials had stated before the police that the sum deducted had already been credited to his account whereas to the contrary the transaction details of the petitioner's account which was obtained from the bank by the police does not show any reflection of the amount of Rs. 30,000/- having been credited as on the date. When the bank was approached by the police for recovery of the CCTV footage, peculiarly it has been stated by the bank personnel that same was not available as the only the footage for last three months was available. It is pertinent to mention here that the petitioner subsequently filed objection against the police report on 11.5.2018. When the bank was approached by the police for recovery of the CCTV footage, peculiarly it has been stated by the bank personnel that same was not available as the only the footage for last three months was available. It is pertinent to mention here that the petitioner subsequently filed objection against the police report on 11.5.2018. On the basis of the police report in terms of Section 202 of the Code of Criminal Procedure, the learned Chief Judicial Magistrate, Malda disposed of the application being Case No. 955C/17 vide order dated 07.6.2018 which has been challenged in this revisional application on the ground that the impugned order is a glaring example of non-application of judicial mind as the police report dated 23.8.2018, it has been reported that no sum was ever credited to the account of the petitioner. 4. The learned Magistrate in his order has observed that the bank authority held enquiry and submitted report that ATM transaction had failed due to mechanical failure and the shown deducted cash had been credited by the bank authority after receiving complaint from the ATM card holder. It was reported that both the transaction of Rs. 30,000/- and Rs. 10,000/- was completed successfully and so cash has been deducted from his account rightly. The computerized copy of the transaction details of the complainant's account is also submitted and have been considered. The learned Magistrate dropped the complaint finding no reason to further proceed with the case. The date of withdrawal as per the complaint filed with the Manager is on 08.7.2017 whereas the petitioner informed the Bank Manager, Borokanta Branch on 17.7.2017 and on 18.7.2017, the G.D. Entry No. 1012 dated 18.7.2017 was registered. ATM Customer Advice being the mini statement as on the date of transaction on 08.8.2017 at 16:19 hours clearly reveals that the sum of Rs. 30,000/- and Rs. 10,000/- were withdrawn from the account of the petitioner. It appears that the information as to non-drawal of the sum of Rs. 30,000/- was reported in writing at a belated stage on 17.7.2017 does credit a doubt in the judicial mind as to how the petitioner instantly had not reported to the Home Branch where his account is maintained. But I do find that the Customer Service Centre was reported on 08.7.2017 regarding non-drawal of Rs. 30,000/- through ATM. 30,000/- was reported in writing at a belated stage on 17.7.2017 does credit a doubt in the judicial mind as to how the petitioner instantly had not reported to the Home Branch where his account is maintained. But I do find that the Customer Service Centre was reported on 08.7.2017 regarding non-drawal of Rs. 30,000/- through ATM. The fact remains that by advocate's letter dated 18.9.2017 a communication was made to Saibal Maitra, advocate on behalf of the Branch Manager, State Bank of India, Kaliachak Branch intimating that the petitioner had received the said sum from ATM machine on the same date as per the ATM report. 5. On behalf of the opposite party no. 2 Branch Manager, State Bank of India, it has been contended denying all the allegations as made by the petitioner that he has no Savings Account bearing No. 11892090984 with the State Bank of India, Kaliachak Branch whereas the petitioner has its Savings Account No. 11892090984 maintained at State Bank of India, Borokant Branch, P.O.- Bhagwanpur, District-Malda, West Bengal, PIN -732201. True it is, but the complaint was registered with the Home Branch of the petitioner. 6. It is submitted by Mr. Banerjee that if any incident took place on 08.7.2017 at about 4:20 p.m. at ATM machine located at Kaliachak Branch, District- Malda, it cannot be said that the transaction for Rs. 30,000/- was unsuccessful due to malfunctioning of the machine. There is no lapse in the security system of the bank and the story made out by the petitioner himself is a concocted and his involvement in committing fraud cannot be ruled out. Cash Balance Report for the period from 07.7.2017 to 10.7.2017 in respect of the ATM machine would show that there was no excess cash on 08.7.2017 on the alleged date of incident. Annexure-A being print out of the complaint detail from the Website of the State Bank of India being the online complaint filed by the petitioner as well as the report submitted on the complaint of the petitioner, E.J. Log generated by the computer system, statement of account of the petitioner would reveal 'no excess cash certificate' issued by the Branch on 08.7.2017. It would appear that the complaint online was lodged on 08.7.2017 so, the conduct of the petitioner cannot be doubted to hold him for alleged fraud upon the Bank for raising false claim. 7. It would appear that the complaint online was lodged on 08.7.2017 so, the conduct of the petitioner cannot be doubted to hold him for alleged fraud upon the Bank for raising false claim. 7. It appears that the petitioner had informed the Branch Manager, Borokant Branch, P.O.- Bhagwanpur, District-Malda by his letter dated 17.7.2017 after waiting for a period of nine days from the date of alleged incident. The petitioner's grievance was redressed through online Customer Service Department of State Bank of India showing the transaction as successful thorough enquiry but it was rejected by the Customer Service Department through online with advice that the transaction was found to be successful as it is depicted from the Annexure-B to the Affidavit-in-opposition. 8. On the petition under Section 156(3) of the Code of Criminal Procedure before the Chief Judicial Magistrate, Malda after lapse of two and half months, the learned Magistrate had ordered preliminary enquiry and on the basis of the enquiry report of the Sub-Inspector of the concerned Police Station was pleased to drop the case. 9. It is pertaining to note that the statement of the bank officials during investigation as depicted police report is on general issue that in the event if any transaction fails due to mechanical or other failures, the deducted cash has to be credited by the Bank authority after receiving complaint from the ATM card holder. The record reveals that transaction for Rs. 30,000/- and Rs. 10,000/- was completed successfully by the petitioner and cash was deducted from the account of the petitioner as per the ATM Customer Advice Slip. The details of the transaction from the record was also investigated by the police and it was clearly seen that the transaction of the said amount were made by the account holder of A/c. No. 1892090984 successfully from the ATM of SBI, Kaliachak Branch on 08.7.2017. 10. In reply to the contention so made on behalf of the opposite party no. 2, the petitioner contended that there has been typographical error in the account number in the main revisional application which does not form the basis of the present case. The E.J. Log as well as 'no excess cash certificate' are documents in custody of the opposite party no. 2 being the Manager of the issuing Branch making the same unworthy of reliance because the opposite party no. The E.J. Log as well as 'no excess cash certificate' are documents in custody of the opposite party no. 2 being the Manager of the issuing Branch making the same unworthy of reliance because the opposite party no. 2 during investigation has failed to provide to the police with the CCTV Footage and as the act is sheer negligence on the part of the opposite party no. 2 because despite the receipt the complaint of the petitioner, opposite party no. 2 as 17.7.2017, failed to preserve the CCTV Footage and subsequently, has taken the ridiculous defence that the same cannot be restored beyond a period of 90 days. 11. I do agree with the contention as advanced by the rival parties but the question remains in the judicial mind as to why the claim was not entertained properly. 12. I find on bare reading of the complaint details and Electronics Journal Annexure-A, it does appear that the response of the Code-000 means successful transaction and it does not show mechanical fault in the ATM machine. So, the CCTV Footage is required to be viewed by proper investigation into the matter as to whether at all, it was the petitioner who withdrew the entire money by operation of the ATM machine through his ATM card or anybody else. 13. I am of the considered view in the context of the finding above that when the electronics journal speaks of successful transaction and yet a complaint is registered, it is imperative for the Bank authority to hold through enquiry into the dispute on their own by obtaining the CCTV Footage and if not available beyond the period of 90 days, it is desired on the part of the Branch Manager or the concerned authority of the Bank to have preserved the CCTV Footage on receipt of the complaint on 17th July 2017 as on the date, CCTV Footage was supposed to be preserved in the system. That apart, even today if such footage can be retrieved through the mother board of the computer system which is maintained by the Agency appointed by the State Bank of India. 14. I find from the statement of accounts that a sum of Rs. 30,000/- has been shown as debited but it has not been credited as yet to the account of the petitioner. 14. I find from the statement of accounts that a sum of Rs. 30,000/- has been shown as debited but it has not been credited as yet to the account of the petitioner. This fact cannot be lost sight of that even in case of no link during transaction, the amount may be shown as debited from the account of the card holder in many cases and such amount gets credited back to the account holder on the same day but transaction slip may not be generated through ATM. There may be cases of this kind. Therefore, best solution could be to obtain CCTV Footage and even by obtaining pictures from the ATM machine fitted with the hidden camera in respect of the day's transaction. The Investigating officer who was ordered to hold preliminary enquiry into the matter by the learned Chief Judicial Magistrate has not taken the proper step to obtain CCTV Footage or the pictures by approaching the proper authority of the State Bank of India. Therefore, I find no justification for the learned Magistrate to drop the complaint by accepting the police report which bears scanty investigation altogether. 15. Mr. Swarup Banerjee, learned Advocate for the opposite party no. 2 submitted that in this particular case, the petitioner has arrayed the Branch Manager of Kaliachak Branch as an accused in the complaint under Section 156(3) of the Cr.P.C. whereas the Branch Manager Borokanta is the necessary party and witness to cooperate with the investigation. It is also submitted that the petition under Section 156(3) of Cr.P.C. is not supported by an affidavit as it is required to be made for the purpose of ordering an investigation. Be that as it may, I direct that the proper investigation is needed in this case not only in the interest of the complainant/petitioner but in the interest of the bank authority as well. 16. In the result, the order dated 7th June, 2018 passed by the Chief Judicial Magistrate, Malda in Case No. 955C/17 under Section 156(3) of the Code of Criminal Procedure dropping the complaint is hereby set aside with direction to the learned Chief Judicial Magistrate, Malda to hold further inquiry into the matter in the light of the observation made in this judgment. 17. Let a copy of this order be communication to the learned Chief Judicial Magistrate, Malda for his action. 18. 17. Let a copy of this order be communication to the learned Chief Judicial Magistrate, Malda for his action. 18. Urgent certified Photostat copy of this Judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.