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Telangana High Court
State Bank Of India vs Sri Biresh Chandra Gangopadhyay on 11 April, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
WRIT PETITION No.31150 OF 2024
ORDER:
(Per Hon’ble Sri Justice Abhinand Kumar Shavili)
This Writ Petition is filed aggrieved by the judgment, dated
30.07.2024, rendered in First Appeal No.684 of 2022, by the
National Consumer Disputes Redressal Commission at New Delhi
(for short, ‘National Commission’) and also the order, dated
04.08.2022, passed in C.C.No.102 of 2019 by the Telangana State
Consumer Disputes Redressal Commission, Hyderabad (for short,
‘State Commission’).
2. Heard Sri M. Narender Reddy, learned Senior Counsel
representing Sri V.U.S.S.R. Anjaneyulu, learned counsel appearing
for the petitioner-Bank and Sri D.V. Sitaram Murthy, learned Senior
Counsel representing Sri K. Kiran Kumar, learned counsel
appearing for the respondents.
3. Learned Senior Counsel appearing for the petitioner-Bank
had contended that the respondents were wife and husband. They
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have opened joint Savings Bank Account with the petitioner-Bank
bearing A/c. No.10123103876 at Balkampet Branch, Hyderabad.
The respondents have opened three fixed deposits for
Rs.10,00,000/-, Rs.15,00,000/- and Rs.15,00,000/-, totaling
Rs.40,00,000/-, on 09.08.2017 for a period of one year with a
mandate of auto renewal. Accordingly, the petitioner-Bank has
issued Fixed Deposit Receipts to the respondents.
4. Learned Senior Counsel appearing for the petitioner-Bank
had further contended that with the technological advancement
and as per the RBI guidelines, internet banking facility was
promoted by all the Banks to enable all the depositors/customers
of the Banks to voluntarily register themselves with internet
banking facility and transact their accounts by withdrawing the
amounts, transferring the amounts or create or break fixed deposits
through the App itself and also through internet banking facility.
As per the RBI Master Circular, dated 01.07.2011, all the Banks
were mandated to ensure that all the banking facilities such as
cheque book facility including third party cheques, ATM facility,
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net banking facility, locker facility, retail loans, credit card etc., are
invariably offered to the visually challenged persons also, without
any discrimination.
5. Learned Senior Counsel had also drawn our attention to the
Terms of Service (Terms & Conditions) of petitioner-Bank and
Clause No.4 of the said terms clearly states that a user would be
allotted with a User-ID and Password (to be used at the time of
login) by the Bank in the first instance and the user has to
mandatorily change the User-ID and Password assigned by the
Bank on accessing the internet banking services for the first time.
Learned Senior Counsel further contended that only when the
User-ID and Password are typed, the customer can use the internet
banking services and the transaction will be completed, when OTP
is entered.
6. Learned Senior Counsel appearing for the petitioner-Bank
had further contended that the respondents have admittedly
approached the petitioner-Bank for internet banking facility.
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Initially, they opted for ‘view only’ facility. However, later the
respondents have enabled transaction rights by logging into
petitioner-Bank’s website on 05.08.2018 at 11:20 AM and carried out
certain transactions.
7. Learned Senior Counsel had further contended that the
petitioner-Bank, in order to safeguard the interest of the customers
and to ensure that the customers accounts are not being hacked or
fake transactions are being taken place without their knowledge,
send SMS messages and OTPs to the registered mobile number of
the customers. Only when the OTP sent to the customers is
entered, the transaction will be done. In the instant case, SMS
messages and OTPs were sent as a precaution to the registered
mobile number of the respondents i.e. 9440531348 and only when
the respondents have entered the said OTP number, the online
transactions have been carried out.
8. Learned Senior Counsel had further contended that on
05.08.2018, at the request of the respondents, their account was
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upgraded to that of full-fledged internet banking and a KIT was
also handed over to them, whereby they can change their password
for internet banking facility and only when SMS message is sent
and OTP is entered, the transactions will be carried out.
9. Learned Senior Counsel had further contended that the
respondents have lodged a complaint with the police on 09.04.2019,
which was registered as F.I.R.No.240 of 2019 of Cyber Crime Police
Station, Hyderabad, complaining that without their knowledge
certain transactions have taken place in their account and money to
a large extent was withdrawn and misappropriated and that they
are aged and visually impaired persons and they were not aware
about the transactions, which were carried out in their account
through online. Learned Senior Counsel further contended that it
was alleged by the respondents that whenever they want to update
their passbook, the petitioner-Bank was not updating their
passbook on the ground that the printer was not working; that
during November, 2018, to March, 2019, several online transactions
took place in their account without their knowledge; and that they
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have taken ‘view only’ facility through internet banking, but
without any request being made by the respondents, their account
was upgraded to that of full-fledged online account and
consequently, the amounts from the account of the respondents
were withdrawn fraudulently.
10. Learned Senior Counsel had further contended that alleging
that an amount of Rs.63,00,000/- was fraudulently withdrawn from
the respondents account because of the negligence and deficiency
of service by the petitioner-Bank and holding the petitioner-Bank as
responsible for upgrading their account from ‘view only’ facility to
that of full-fledged internet banking service through online,
without there being any requisition by the respondents, the
respondents filed a complaint i.e. C.C.No.102 of 2019 before the
State Commission against the petitioner-Bank. The State
Commission has erroneously came to a conclusion that it is the
petitioner-Bank, which is responsible for fraudulent transactions in
the account of the respondents and vide order, dated 04.08.2022,
partly allowed the complaint preferred by the respondents and
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directed the petitioners to jointly and severally reimburse an
amount of Rs.63,74,527/- along with interest at the rate of 9% per
annum from the date of the complaint i.e. 11.06.2019 till realization
thereafter. The State Commission has also awarded a sum of
Rs.3,00,000/- towards compensation along with Rs.20,000/-
towards costs.
11. Learned Senior Counsel appearing for the petitioner-Bank
had further contended that the police have investigated the
complaint filed by the respondents and filed Charge Sheet on
06.11.2023 on the file of learned I Additional Metropolitan Sessions
Judge, at Hyderabad, and the same was numbered as C.C.No.6467
of 2024. As per the Charge Sheet filed by the police, the amounts
from the respondents’ account were transferred to M/s. Nearby
Technologies, M/s. Avenues India Private Limited, M/s. Riya
Travels, Interactive Fina and M/s. Flight Raja Travels and all the
transactions took place between 09.08.2018 to 25.03.2019. It is also
clear that much amounts were transferred to M/s. Nearby
Technologies and M/s. Avenues India Private Limited and the
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police had also identified the accused, who are none other than the
helpers of the respondents, which would mean that the
respondents internet account information was known to their
maids and they were responsible for the fraudulent transactions,
which took place in the bank account of the respondents and
therefore, the petitioner-Bank is no way responsible for the alleged
fraudulent transactions.
12. Learned Senior Counsel had further contended that the
internet banking User-ID, Password and OTPs, which are received
from the Bank, shall not be shared by the customer to anyone and it
is their responsibility but not the responsibility of the Bank. This
fact was not properly appreciated by the State Commission and the
State Commission has mechanically allowed the complaint in
favour of the respondents and erroneously directed the petitioners
to reimburse an amount of Rs.63,74,527/- jointly and severally to
the respondents along with interest at the rate of 9% per annum
from the date of complaint i.e. 11.06.2019 till realization thereafter
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and the State Commission has also awarded a sum of Rs.3,00,000/-
towards compensation along with Rs.20,000/- towards costs.
13. Learned Senior Counsel had further contended that when the
fault does not lie with the petitioner-Bank, the question of allowing
the complaint filed by the respondents would not arise. Therefore,
aggrieved by the order passed by the State Commission, the
petitioner-Bank has carried the matter in appeal to the National
Commission by filing the subject First Appeal No.684 of 2022 and
the National Commission was pleased to dismiss the appeal
preferred by the petitioner-Bank, without appreciating any of the
contentions raised by the petitioner-Bank and confirmed the order
passed by the State Commission.
14. Learned Senior Counsel appearing for the petitioners had
contended that the issue raised in the present Writ Petition is
squarely covered by the judgment rendered by the Honourable
Supreme Court in Chairman and Managing Director, City Union
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Bank Limited and another v. R. Chandramohan1, wherein, the
Honourable Supreme Court has held that the proceedings before
the State Commission and National Commission are essentially
summary in nature. The issues which involve disputed factual
questions should not be adjudicated by the Commission and the
issues in respect of fraudulent transactions, tortious acts,
criminality like fraud and cheating could not be decided by the
Commission under the Consumer Protection Act, 1986 (for short,
‘the Act’) and the ‘deficiency of service’, as well settled, has to be
distinguished from the criminal acts or tortious acts. There could
not be any presumption with regard to the wilful fault,
imperfection, shortcoming or inadequacy in the quality, nature and
manner of performance in service, as contemplated under Section
2(1)(g) of the Act. In the instant case, when there is an element of
fraudulent transaction committed at the end of the respondents
through their maid and her husband, the State Commission could
not have adjudicated the dispute and allowed the complaint in
favour of the respondents.
1
(2023) 7 SCC 775
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15. Moreover, the charge sheet filed in the criminal case also
discloses that the real culprits, who had carried out fraudulent
transactions through the internet banking facility of the
respondents, were the maid of the respondents and her husband
and therefore, it is the respondents alone are to be blamed for
allowing the access of their User-ID and Password of internet
banking facility to their maid and her husband and that the
petitioner-Bank is not responsible. Therefore, the State
Commission was not justified in directing the petitioners to make
good an amount of Rs.63,74,527/-, that too, along with interest at
the rate of 9% per annum from the date of complaint till the date of
realization. The petitioner-Bank has never done any fraudulent
transactions. It is the staff of the respondents alone who have
indulged in fraudulent transactions and the question of vicarious
liability on the part of the petitioner-Bank would not arise. The
concept of vicarious liability is not applicable in a criminal
jurisprudence.
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16. Learned Senior Counsel had further contended that in the
instant case, the State Commission has allowed the complaint
preferred by the respondents on the ground that because of the
lapses of the petitioner-Bank i.e. they have upgraded the
respondents internet banking on their own from ‘view only’ facility
to that of full-fledged internet banking facility, the fraudulent
transactions have taken place. Learned Senior Counsel had
further contended that online transactions were made available to
the customers only on their request and admittedly, the request for
upgrading the internet banking of the respondents from ‘view
only’ facility to that of full-fledged internet banking facility has
only been made through the registered mobile number of the
respondents and User-ID and Password were directly sent to the
respondents’ registered mobile number and there is no doubt with
regard to the registered mobile number of the respondents is
concerned i.e. 9440531348. When the respondents have not
disputed about the registered mobile number, they cannot deny
that a request had not come from their registered mobile number.
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When once a request was made for upgrading the bank account
from ‘view only’ facility to that of full-fledged internet banking
facility, the petitioner-Bank has bona fidely upgraded the internet
banking account of the respondents to full-fledged banking account
and for every transaction, precaution was taken by the petitioner-
Bank by sending SMS messages and OTPs to the registered mobile
number of the respondents. Only when OTP is entered, the
transaction will be completed. It is the responsibility of the
respondents to ensure that their internet banking privacy and
safety is protected by themselves. If the workers of the
respondents have played fraud, then the petitioner-Bank cannot be
made to pay the loss caused to the respondents. This fact was not
properly appreciated either by the State Commission or by the
National Commission. Therefore, appropriate orders be passed in
the Writ Petition by setting aside the order, dated 04.08.2022,
passed in C.C.No.102 of 2019 by the State Commission and the
judgment, dated 30.07.2024, rendered in First Appeal No.684 of
2022 by the National Commission and allow the Writ Petition.
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17. On the other hand, learned Senior Counsel appearing for the
respondents had contended that the respondents are aged persons
and senior citizens. Respondent No.1 is a retired IAS Officer, who
served as a Secretary to the Government of Andhra Pradesh,
Secretary to Government of India and also as Secretary General,
Afro Asian Rural Reconstruction Organization. Respondent No.1
is partially blind and respondent No.2 is totally blind. They are
aged above 90 years. They have opened an account i.e. joint
savings bank account bearing A/c. No.10123103876, with the
petitioner-Bank at Balkampet Branch. They have also opened three
fixed deposits on 09.08.2017 to a tune of Rs.10,00,000/-,
Rs.15,00,000/- and Rs.15,00,000/-, for a period of one year with
mandate for auto renewal, for which the petitioner-Bank has issued
Fixed Deposit Receipts.
18. Learned Senior Counsel appearing for the respondents had
further contended that the respondents have not surrendered the
Fixed Deposit Receipts and even without submitting the Fixed
Deposit Receipts, the petitioner-Bank has liquidated the fixed
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deposits, even before its maturity, without informing the
respondents. Further, the respondents have sought ‘view only’
facility on internet banking, but they never sought full-fledged
transactions on internet banking and on 05.08.2018, without the
knowledge of the respondents, the petitioner-Bank has upgraded
the internet banking of the respondents from ‘view-only’ facility to
that of full-fledged internet banking facility. In spite of there being
no request, the petitioner-Bank has upgraded the account of the
respondents and that led to taking place of fraudulent transactions
from the respondents account and consequently, the respondents
amount to a tune of Rs.63,74,527/- was fraudulently withdrawn.
Learned Senior Counsel had further contended that for the
deficiency of service of the petitioner-Bank, the State Commission
has rightly allowed the complaint in favour of the respondents.
19. Learned Senior Counsel appearing for the respondents had
further contended that Section 2(g) of the Act states that
“deficiency” means any fault, imperfection, shortcoming or
inadequacy in the quality, nature and manner of performance
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which is required to be maintained by or under any law for the
time being in force or has been undertaken to be performed by a
person in pursuance of a contract or otherwise in relation to any
service. Further, Section 2(o) of the Act states that “service” means
service of any description which is made available to potential
users and includes, but not limited to, the provision of facilities in
connection with banking, financing insurance, transport,
processing, supply of electrical or other energy, board or lodging or
both, housing construction, entertainment, amusement or the
purveying of news or other information, but does not include the
rendering of any service free of charge or under a contract of
personal service. As per Section 2(o) of the Act, ‘service’ includes
banking service also. Since there was deficiency in service on the
part of the petitioner-Bank, the State Commission was justified in
allowing the complaint in favour of the respondents and the
National Commission was also justified in dismissing the appeal
preferred by the petitioners.
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20. Learned Senior Counsel appearing for the respondents had
relied upon series of judgments and contended that in a Writ of
Certiorari, the scope of this Court is limited. Until and unless there
is error of jurisdiction or error apparent on the face of record, the
Court cannot interfere. Admittedly, in the instant case, no error
was committed either by the State Commission or the National
Commission.
21. Learned Senior Counsel appearing for the respondents had
also relied upon the judgment of the High Court of Gauhati in
State Bank of India v. Pallabh Bhowmick and others2, wherein,
some online transactions have taken place from Pallabh
Bhowmick’s account and the learned Single Judge of Gauhati High
Court has directed the State Bank of India to deposit an amount of
Rs.94,204.80 ps. in his account, holding that when no negligence
can be attributed on a customer for fraudulent transaction which
took place without his knowledge, the Bank alone is liable for such
online transaction, and when the same was challenged before a
2
2024 SCC OnLine Gau 1519
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Division Bench, the Division Bench of the Gauhati High Court has
dismissed the Writ Appeal confirming the order passed by the
learned Single Judge.
22. Learned Senior Counsel appearing for the respondents had
further relied upon a judgment of the Honourable Supreme Court
in Dav Public School v. Senior Manager, Indian Bank, Midnapur
Branch and others3, wherein, certain fraudulent transactions have
taken place in the School account and the Honourable Supreme
Court has directed the Bank to pay an amount of Rs.25,00,000/-.
23. Learned Senior Counsel appearing for the respondents had
further relied upon a judgment of the Honourable Supreme Court
in Central Council for Research in Ayurvedic Sciences and
another v. Bikartan Das and others4 and contended that the scope
of Certiorari is only to confine the inferior Tribunals within their
jurisdiction, so as to avoid the irregular exercise, or the non-
exercise or the illegal assumption of it and not to correct errors of
3
(2019) 20 SCC 31
4
Civil Appeal No.3339 of 2023, dated 16.08.2023.
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finding of fact or interpretation of law committed by them in
exercise of powers vested in them under the Statute. When there is
any error apparent on the face of the record, then only the High
Courts can interfere under the jurisdiction of the Certiorari. In the
instant case, the facts and the transactions were dealt with by the
State Commission and the National Commission and they
categorically gave a finding that there was deficiency of service on
the part of the petitioner-Bank. The State Commission was justified
in allowing the complaint preferred by the respondents. This Court
cannot relook into the facts. Therefore, there are no merits in the
Writ Petition and the same is liable to be dismissed.
24. This Court, having considered the rival submissions made by
the learned counsel for the parties, is of the considered view that
the petitioner-Bank has initially extended ‘view only’ facility on the
internet banking to the respondents. However, on a specific
request, which has come from the registered mobile number of the
respondents on 05.08.2018, the petitioner-Bank has upgraded the
internet banking of the respondents account from ‘view only’
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facility to that of full-fledged internet banking facility. To that
extent, the petitioner-Bank has produced a copy of the proceedings,
wherein, a request has come from the respondents through their
registered mobile number i.e. 9440531348, for upgrading their
internet banking. The online transactions took place at the end of
the respondents, may not be by the respondents, but from the
workers of the respondents, and in all the transactions, there was a
request made from the registered mobile number of the
respondents and the petitioner-Bank has sent SMS messages and
also OTPs to the respondents to their registered mobile number.
Only when the OTP is entered, the transaction would be
completed, which would mean that the fraudulent transactions
took place at the side of the respondents, for which the petitioner-
Bank may not be held responsible.
25. Further, the Charge Sheet filed by the police also makes it
clear that one of the accused, who carried out the fraudulent
transactions, is none other than the worker of the respondents and
the responsibility of maintaining confidentiality of the bank
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account details lies with the respondents. Admittedly, the internet
banking transactions took place at the end of the respondents, may
not be by the respondents, but by the workers of the respondents,
and therefore, the State Commission was not justified in directing
the petitioner-Bank to reimburse the respondents an amount of
Rs.63,74,527/- along with interest at the rate of 9% per annum from
the date of complaint till the date of realization, for the fraud which
was not committed by the petitioner-Bank, but was committed by
the workers of the respondents and the same is contrary to law,
more so, when the police investigation reveals that the amounts
were transferred to various other accounts by the workers of the
respondents. The amounts to be recovered by the police in the
criminal case can be directed to be reimbursed to the respondents,
but the State Commission was not justified in directing the
petitioner-Bank to reimburse the loss caused to the respondents.
This fact was also not properly appreciated by the State
Commission and the National Commission. The National
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Commission ought to have allowed the appeal preferred by the
petitioner-Bank.
26. As far as the judgment relied upon by the respondents in
Bikartan Das‘s case (supra 4) is concerned, the ratio laid down
therein is that in Certiorari jurisdiction Courts cannot go into
factual position. As far as the finding recorded by the State
Commission that the petitioner-Bank must reimburse the amount
to the respondents is concerned, the State Commission could not
have come to such a conclusion that the petitioner-Bank has
committed any fraud or it has involved in any fraudulent
transaction. When the petitioner-Bank was not involved in any
fraudulent transaction or any irregularity, the question of directing
the petitioner-Bank to reimburse the amounts would not arise.
Moreover, the material placed before this Court i.e. Charge Sheet
filed in the criminal case, also discloses that the amounts from the
account of the respondents were transferred to several other
accounts, that too, at the instance of the workers of the
respondents. Therefore, the State Commission was not justified in
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directing the petitioners to reimburse the amounts to the
respondents. This fact was also not properly appreciated by the
National Commission.
27. Insofar as the judgment relied upon by the respondents in
Dav Public School‘s case (supra 3) is concerned, admittedly, in that
case, the complaint was lodged with the Bank on 09.09.2014 i.e. the
next day of detecting the siphoning off the amount from the school
account and in those set of circumstances, the Honourable Supreme
Court has rightly directed the Bank to compensate the school to a
tune of Rs.25,00,000/-. But, in the instant case, even before a
complaint could be lodged, several fraudulent transactions have
taken place, that too, at the end of the respondents, may not be by
the respondents, but by their workers. The workers have gained
access to the registered mobile number of the respondents and they
have misappropriated the amounts and indulged in fraudulent
transactions, for which the petitioner-Bank cannot be held to be
responsible.
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28. Further, the Online RBI Guidelines also state that Passwords
and OTPs should not be shared to anybody and that for a
fraudulent transaction, the Bank is not responsible. Admittedly, in
the instant case, the petitioner-Bank has taken precautions by
sending SMS messages and OTPs to the registered mobile number
of the respondents and when misuse has occurred at the end of the
respondents’ domestic help, the petitioner-Bank cannot be held to
be responsible.
29. The Honourable Supreme Court in R. Chandramohan‘s case
(supra 1) has rightly held that the proceedings before a State
Commission are summary in nature and it should not adjudicate
the matters where there is an element of fraudulent transactions,
such as tortious acts, criminal fraud and cheating. The State
Commission should not adjudicate complex matters. Admittedly,
in the instant case, fraudulent transactions have occurred with the
respondents’ bank account, that too, by the domestic help of the
respondents. Therefore, the State Commission could not have
adjudicated the case when fraudulent transactions have taken place
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at the end of the respondents by their workers. Therefore, the State
Commission was not justified in allowing the complaint filed by
the respondents against the petitioner-Bank.
30. Further, the issue with regard to upgrading the internet
banking from ‘view only’ facility to that of full-fledged internet
banking facility, without there being any request from the
respondents, is concerned, admittedly, the request was made
through registered mobile number of the respondents for
upgrading the account of the respondents to that of full-fledged
internet banking facility and the petitioner-Bank, in its true faith,
has upgraded the account of the respondents and also furnished
User-ID and Password. The petitioner-Bank has taken every
precautionary step to ensure protection of the respondents’ money
by sending SMS messages and OTPs to the respondents’ registered
mobile number. Only when the OTPs, which were received by the
respondents, were entered, the transactions have been made.
Therefore, the petitioner-Bank under no stretch of imagination can
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be held responsible for the fraudulent transactions, which have
taken place in the respondents’ account.
31. As far as the contention of the respondents that the
petitioner-Bank could not have redeemed the Fixed Deposits even
before the date of their maturity, that too, when the original Fixed
Deposit Receipts are with the respondents, is concerned, the
learned Senior Counsel appearing for the petitioner-Bank has
produced the Terms of Service of petitioner-Bank, wherein, Rules 4
and 5 make it clear that the Fixed Deposits were also permitted to
be redeemed through internet banking service. Admittedly, the
request for redemption of fixed deposits was made through the
registered mobile number of the respondents and the petitioner-
Bank in a bona fide manner has redeemed the fixed deposits of the
respondents. Therefore, the petitioner-Bank could not have been
found fault for redemption of fixed deposits of the respondents.
32. Further, a perusal of the Fixed Deposit Receipts of the
respondents also makes it clear that the fixed deposits can be
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redeemed through internet banking service. Therefore, while
handling the account of the respondents, the petitioner-bank has
taken all precautions in the form of sending SMS text and also OTP
numbers to the registered mobile number of the respondents before
the transactions were completed. Therefore, under no stretch of
imagination the petitioner-Bank is found fault. If at all any
mischief has taken place, it has taken place at the end of the
respondents, may not be by the respondents, but by their domestic
help, for which, the petitioner-Bank is not responsible. Therefore,
the order, dated 04.08.2022, passed by the State Commission and
the judgment, dated 30.07.2024, rendered by the National
Commission are liable to be set aside.
33. Accordingly, the Writ Petition is allowed and the order, dated
04.08.2022, passed in C.C.No.102 of 2019 by the Telangana State
Consumer Disputes Redressal Commission, Hyderabad, and the
judgment, dated 30.07.2024, rendered in First Appeal No.684 of
2022, by the National Consumer Disputes Redressal Commission at
New Delhi, are set aside. There shall be no order as to costs.
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Miscellaneous Applications, if any, pending in this Writ
Petition shall stand closed.
________________________________
ABHINAND KUMAR SHAVILI, J
__________________________
TIRUMALA DEVI EADA, J
Date: 11.04.2025.
MD
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