JUDGMENT :

Heard Mr. S. Banik, learned counsel for the petitioner and Mr. N. Goswami, learned Govt. Advocate for respondent no. 1, 2 and 7, Mr. P. Hazarika, learned counsel for respondent no. 3, and Mr. S.S. Sharma, learned senior counsel, assisted by Mr. B.J. Mukherjee, learned counsel for the respondent nos. 4 and 5. None appears on call for the respondent no. 6.

Case of the petitioner and submissions of his learned counsel:

2. The petitioner is the holder of account no. 11288865192, which is maintained in Panjabari Branch of the State Bank of India. The petitioner claims that an ATM –cum-Debit Card was issued to him on 29.03.2004, without e-commerce facility. It is projected that although subsequently e-commerce facility was provided to the petitioner by providing a 16 (sixteen) digit ATM – cum-Debit Card of the petitioner, but without informing him and without providing the CVV number, which is a security code to the said card. Accordingly, it is projected that without CVV, e-commerce or on-line transaction cannot be done through the said ATM –cum- Debit Card. It is also projected that the petitioner did not create ‘3D’ password, which is mandatory for making online transaction through SBI secured gateway. It is also projected that the petitioner never made any On-line purchases by using his 16 (sixteen) digit ATM –cum-Debit Card. It is the case of the petitioner that between the period from 08.05.2012 and 17.05.2012, a sum of Rs.4,44,699.17 was swindled out of his account through illegal on-line transactions, however, without any sms alert being received in his registered mobile number. On 17.05.2012, the petitioner lodged a complaint in State Bank of India, Panjabari Branch (respondent no.5), following by lodging of a ejahar before the Addl. Director General of Police (CID), Assam, which was registered as CID PS Case No. 53/2012 under section 420 IPC read with sections 66 and 66(d) of the Information Technology Act, 2000. Thereafter, the petitioner moved the Banking Ombudsman by filing a complaint, which was registered as Guwa.BKG. OMB/494/2012-13. The petitioner projects that his complaint was rejected by the Banking Ombudsman by order dated 02.04.2013 under Clause 13(c) of the Banking Ombudsman Scheme, 2006 as the determination would require consideration of documents and oral evidence.

3. Therefore, by filing this writ petition under Article 226 of the Constitution of India, the petitioner has prayed for an enquiry into the matter as to why sms alerts for on-line transaction to the extent of Rs.4,44,699.17 did not reach the petitioner’s registered mobile no. 9435017059 and for directing the refund of the sum of Rs.4,44,699.17 along with applicable interest.

4. The petitioner had filed an additional affidavit on 28.06.2013, wherein a letter dated 02.06.2013 by the petitioner to Branch Manager, SBI, Panjabari Branch is annexed, thereby projecting that on 02.06.2013, he had received one sms from LM-SBICRD informing that transaction of Rs.233.01 on card ending with XX9944 was made at Mirage Hotel #1366912396 on 02.06.2013 had been declined and the petitioner was directed to call at 18601801290/ 39020202 for details. The petitioner projects that he had called 18601801290 and asked the customer care to block the card and issue a fresh card with different number and electronic data and that he had received electronic confirmation of the card being blocked. The petitioner had requested that as the failed transaction can be tracked, the bank should lodge and FIR.

5. The learned counsel for the petitioner had referred to the affidavit-in-reply filed by the petitioner against the affidavit-in-opposition filed by the respondent nos. 4 and 5 and it was submitted that the 16 digit ATM-cum-debit card was never activated or used and that the fraudulent transactions were made by use of 19 digit ATM-cum-Debit card, which admittedly did not support internet transactions. It was submitted that the sms alerts which was received by the peti