IMPORTANT POINT
Banks must prove customer negligence to deny liability for unauthorized transactions; mere downloading of an app does not constitute negligence.

JUDGMENT :

KARDAK ETE, J.

1. Heard Mr. A. Parvez, learned counsel for the appellant. Also heard Mr. Pallabh Bhowmick/respondent No. 1, in person; Mr. P. Hazarika, learned counsel for the respondent No. 2 and Mr. D. K. Sarma, learned counsel for the respondent No. 5.

2. This intra-Court appeal is directed against the judgment and order dated 30.09.2022, passed by the learned Single Judge in WP (C) No. 1900/2022, whereby, the learned Single Judge, has set aside the order dated 07.03.2022, passed by the Ombudsman, Reserve Bank of India, and directed the appellant to deposit an amount of Rs. 94,204.80/- (Rupees Ninety-four thousand two hundred four and Eighty Paisa) only, in the bank account of the petitioner with a liberty to recover the amount from the respondent No. 3.

3. The brief facts of the case, are that the respondent No. 1/petitioner is having a Savings Bank (SB) Account bearing No. 10823993373 with the State Bank of India (SBI), Guwahati Branch. He had made an online purchase of some garment from the Louis Philippe store which he wanted to return and get the money back. On 18.10.2021, the respondent No. 1/petitioner had received a call from a fraudster, who was later identified as the respondent No. 4, namely Papendra Kumar, from the State of Uttar Pradesh. Posing himself as Customer Care Manager of the Louis Philippe, the respondent No. 3, the fraudster had asked the petitioner to download a ‘mobile app’ for the purpose of making a refund of Rs. 4,000/- (Rupees Four thousand) only in lieu of return of a garment earlier purchased by him. Believing bonafide that the call was from the customer care department ‘Louis Philippe’ the respondent No. 1/petitioner had downloaded the ‘mobile app’. Soon thereafter, a sum of Rs. 94,204/- (Rupees Ninety-four thousand two hundred four) only was siphoned off from the bank account of the respondent no. 1/petitioner by three separate online transactions. An amount of Rs. 64,017/- (Rupees Sixty-four thousand seventeen) was transferred from the bank account of the respondent no. 1/petitioner by Payment Gateway (PG) transactions. Immediately, thereafter, two other transactions took place for the amounts of Rs. 30,186/- (Rupees thirty thousand one hundred eighty six). The said fraudulent transactions took place on 18.10.2021 through mobile phones bearing number +91 7789956974 and +91 9188762299. The amounts were initially transferred to the beneficiary account in the Federal Bank and thereafter, shifted to other bank accounts.

4. The respondent No. 1/petitioner contends that on 18.10.2021, he had informed the Customer Care Centre of the SBI with a request to cancel the three transactions. Based on his information the SBI customer care cell compliant bearing numbers 69889484 and 69689706 were registered and the SBI debit card of the respondent no. 1/petitioner was also blocked. On the same day i.e. 18.10.2021, he also had lodged an FIR with the Jalukbari Police Station reporting the incident, based on which, Jalukbari PS Case No. 1229/2021 was registered under Sections 417/420 of the IPC. Thereafter, on 19.10.2021, the respondent No. 1/petitioner had made a complaint before the appellant informing him about the said fraudulent transactions. He had also lodged three complaints with the Cybercrime Cell of Criminal Investigation Department (CID), Assam Police vide acknowledgment numbers 30410210067207, 30410210067210 and 30410210067509. The respondent no. 1/petitioner had reported the matter to the National Cyber Crime Reporting Portal (NCCRP) of the Ministry of Home affairs, which was also received vide acknowledgement No. 20410210143122. According to him, even after receipt of the complaint dated 19.10.2021, the appellant bank did not take any action so as to prevent the fraudulent transactions or to recover the amount from the recipient bank.

5. On 16.01.2022, the respondent No. 1/petitioner had received an e-mail from the respondent No. 3 informing that there has been illegal breach of their cust