When the defendant had denied operating the ATM machine at all using the card, the burden was only on the plaintiff to prove, may be by calling in aid a presumption in favour of the plaintiff, but that has not happened in the present case. Even with regard to the ledger extract of the Savings Bank account it cannot even be said that the entries are in the normal course of banking business transaction. I say so because even in terms of plaint averments and the evidence on record, etc. while Savings Bank account of the defendant shows balance of Rs. 96/- on 31.3.1999; the claim of the plaintiff that a sum of Rs. 5,000/- was drawn on 20.4.1999 which makes the balance negative in the Savings Bank account of the defendant; but what is more inexplicable is that further drawals of Rs. 5,000/- on 25.4.1999 and again on 26.4.1999 which according to the bank were made without sufficient balance available in the Savings Bank account which remained negative and vary surprisingly the bank chose to issue a notice of these irregularities only on 10.07.1999 by addressing a letter to the defendant. Overdrawing of the Savings Bank account is not a normal banking practice. If the Savings Bank account should have been overdrawn the bank should have immediately apprised the customer and should have prevented further overdrawals.
On the other hand the first intimation of the irregularity of the Savings Bank account is intimated to the defendant through the letter dated 10.7.1999. There appears to be more irregular things than the transactions having taken place in the normal course of the banking practice and therefore any presumption which could have been drawn in favour of the bank, in terms of any statutory provisions does not follow in such state of affairs and therefore when the plaintiff had failed to make good the withdrawal by cogent and convincing evidence particularly, as attributable to the drawals through the ATM by the plaintiff alone, the suit claim could not have been decreed.
2. The revision petition is by the defendant in the suit who has suffered a decree for payment of a sum of Rs. 17,133/- as claimed by the plaintiff with costs and current interest. The revision petitioner has urged inter alia that learned trial judge has failed to appreciate defence taken on behalf of the defendant; that the learned judge has not appreciated the evidence placed in support of the claim being not fully supportive of the suit claim; that the learned trial judge has wrongly applied the principles of law particularly in the context of Section 4 of Bankers Books of Evidence Act, 1891; that the judgment and decree is not tenable; that the revision petition is to be allowed and the suit should be dismissed.
3. Notice having been issued, respondent/plaintiff in the suit has entered appearance through counsel. Revision petition was admitted, records were called for and the matter is set down for hearing and I have heard Shri. Subramanya, learned Counsel appearing for the petitioner and Shri. Palakshappa, learned Counsel appearing for the respondent.
4. The brief facts as narrated in the plaint is that the plaintiff - a nationalised bank had issued a ATM card to the defendant; that the card enabled the defendant to draw money/cash from the ATM counter established by the bank and that the amount drawn by the defendant would be debited to the Savings Bank account maintained by the defendant with the bank; that it was linked to the Savings Bank account of the defendant; that the defendant could have drawn amounts from the ATM bank upto the extent of balance maintained in the Savings Bank account, but the defendant taking advantage of some snapping of link between the ATM and the computer maintaining the bank accounts and other transaction of the bank had drawn sums of Rs. 5,000/- on three days though there was no sufficient balance in the account. This fact having been noticed by the bank, later the bank had put the defendant on notice calling upon him to make good the amount; that amount having not been paid, a legal notice was also issued but the defendant not having responded positively to make good the amount, it had become necessary for the plaintiff to sue the defendant for the recovery of the amount, particularly, for the three transactions of drawal of Rs. 5,000/- on each occasion through the ATM machine by the defendant with costs and consequence.
5. The defendant on service of notice entered his appearance through counsel and had contested the suit claim. The defendant while admitted the maintenance of Savings Bank account and also the issue of ATM card by the bank, denied having operated ATM machine for drawal of the amounts as indicated in the plaint, pleaded that he had not withdrawn the amounts of Rs. 5,000/- on three occasions as pleaded and resorted to wholesale denial of other plaint averments.
6. In the light of such rival pleadings, the trial court had formulated the following four points as arising for its determination.
1. Whether the plaintiff proves that the defendant has withdrawn Rs. 5,000/- each on 20.4.99, 25.4.99 and 26.4.99 respectively even though he did not have so much of balance in his S.B. Account during that period?
2. Whether the plaintiff proven that the defendant is liable to pay the suit claim as claimed?
3. Whether the plaintiff is entitled for a judgment and decree as sought for?
4. To what order or decree?
7. The parties went to trial on these question. While plaintiff examined the Manager of the bank an PW1 and got marked documents Exs.P1 to P9, salient amongst which are the extracts of the transactions in the ATM machine as Exs.P2 to P4, Ex.P5 ledger extract of the Savings Bank account of the defendant, Ex.P6 letter calling upon the defendant to make good the amount, Ex.P7 reply of the defendant denying the transaction and denying the liability for payment and Ex.P8 legal notice issued by the bank before filing of the suit. The defendant blissfully kept silent throwing the entire burden on the plaintiff by denying the suit claim.
8. The learned judge on appreciation of such material before the court and giving importance to the extract of the Savings Bank account of the defendant - Ex.P5 and applying the provisions of Section 4 of the Bankers Books of Evidence Act, 1891 accepted this piece of evidence for fastening the liability on the defendant and also taking note of the fact that the defendant had chosen not to enter the witness box; that he had neither completed his deposition in chief nor was available for cross-examination. Therefore, ignoring the oral evidence the defendant had placed before the court by examining himself as DW1, proceeded to decree the suit. Another circumstance relied upon by the trial judge is that the defendant having admitted the issue of ATM card and suit claim being based on the plea that the defendant alone had access and use of the ATM card through the special code number which was required to be fed to the ATM machine for operating the card and the defendant not having chosen to explain all these aspects found that it is also a circumstance to decree the suit. The learned trial judge placed reliance on the entries as shown in the ledger book of the Savings Bank account of the defendant particularly, the entry having indicated balance as Dr. and therefore outstanding balance should be made good by the defendant.
9. It is such judgment and decree which is questioned in this revision petition. Submission of Shri. Subramanya, learned Counsel appearing for the petitioner is that the learned trial judge has erroneously decreed the suit; that the evidence placed by the plaintiff before the court was neither cogent nor complete to decree the suit claim; that the petitioner had not established the liability of defendant for payment of the amounts in terms of three withdrawal transactions through the ATM machine; that the defendant was enabled to withdraw amounts under the ATM card only upto the balance maintained in the account and not beyond and that special circumstance pleaded in the plaint regarding snapping of the link between the ATM machine and the main computer was never to the knowledge of the defendant but had no occasion to use the ATM machine; that even as admitted by the plaintiff there was malfunctioning of the ATM machine or the computer and therefore no presumption about the accuracy of the entries could have been drawn in favour of the plaintiff - bank; that the very fact the bank had allowed the Savings Bank account to become irregular and did not even care to apprise the defendant for more than three months is proof enough of the irregularity of the maintenance of books of accounts in the normal course of business; that therefore, no presumption could have been drawn and the learned trial judge, when had declined to draw the presumption in favour of the plaintiff in terms of Section 65-B(2) Clause (b) of Indian Evidence Act, 1872 with Section 65-B being as under:
65-B. Admissibility of electronic records
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in Sub-section (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in any respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularity performed by computers, whether -
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Nevertheless, the learned judge of the trial court erred in placing unwarranted reliance an Section 4 of the Bankers Book of Evidence Act, 1891 and has erroneously decreed the suit; that the suit was liable to be dismissed and therefore revision petition should be allowed and the suit dismissed. In this regard learned Counsel submits, that when the proper recording of the entries which are entries, inturn reflected in the ledger themselves are disbelieved, there was no occasion for the learned trial judge to place reliance on the reflected entries in the ledger for decreeing the suit claim and that too by erroneously drawing presumption in favour of the correctness of the entries with reference to of Section 4 of the Bankers Book of Evidence Act, 1891.
10. Per contra, Shri. Palakshappa, learned Counsel appearing for the respondent/plaintiff in the suit submits that the suit has been rightly decreed; that the transactions have all taken place in the normal course of banking business; that it is a fact the defendant had been issued with a ATM card which enabled the defendant to draw money from the ATM machine by using the confidential code which was exclusively in the knowledge of the defendant with the bank also not knowing the code number, etc; that when once that entries in the ATM machine indicated the three withdrawals, each transaction for Rs. 5,000/-, it necessarily follows that the revision petitioner who alone had access to the card and the code has drawn the amounts; that the ATM card being in the control of the revision petitioner it was the responsibility of the revision petitioner and the entries having been reflected in the Savings Bank account and the revision petitioner having been put on notice about the same; and having not made payment, the suit claim has been rightly decreed and calls for no interference.
11. Learned Counsel for the respondent/plaintiff submits that the trial judge has committed an error to the extent of disbelieving ATM extracts as pet Exs.P2 to P4; that he should have believed them in terms of the provisions of Section 65-B(2) Clause (b) of Indian Evidence Act, 1872 and also the entries in the Savings Bank account; that the extract of which had been placed before the court, has been rightly accepted but the disbelieving of the evidence in terms of Exs.P2 to P4 is on the erroneous impression that it had not been authenticated as a certified copy which infact was not necessary because of the provision of Section 65-B of the Indian Evidence Act, an amendment carried out to the Evidence Act as a sequel to the enacting of the Information Technology Act 2000 and Section 92 of the Act; but nevertheless, the suit having been rightly decreed there is no need to disturb the judgment and decree.
12. However, on this aspect Sri. Subramanya, learned Counsel for the revision petitioner points out that the disbelieving was proper as the Exs.P2 to P4 had not been property marked in order to make it good before the court in terms of provisions of Sub-section 4, of Section 65-B of the Evidence Act and therefore learned trial judge has rightly disregarded this piece of evidence.
13. The suit claim undisputedly is based on a transaction as indicated in the extracts of the ATM machine and ledger entry of the bank relating to the Savings Bank account of the defendant. In so far as the extract of the transactions in the ATM machine Exs.P2 to P4 are concerned the trial judge had disbelieved, this may be on a technical ground or for want of compliance with the provisions of Section 65-B(4) of the Evidence Act. When once these extracts are disbelieved there is no occasion for linking the disbelieved entries in the ATM transaction extracts to the Savings Bank account of the defendant. It is the case of the plaintiff itself that the entries in the Savings Bank account of the defendant are reflective and are only because of the entries as indicated in the ATM machine transaction extracts. When the original entries in the ATM extract itself is disbelieved or not believed there is no occasion for the court to pass a decree based on the ledger entries in the Savings Bank account of the defendant which were not proved independently nor was it the case of the plaintiff that it was independent of the ATM entries.
14. When once the link between the ATM entries and the ledger entries snapped, there is no occasion to place reliance on the entries in the ledger. Even here the learned trial judge has wrongly applied presumption available under Section 4 of the Bankers Book of Evidence Act, 1891 assuming that such presumption is available it can only amount that a certified copy of the ledger entries may be accepted as secondary evidence before the court even in the absence of the primary evidence of the ledger itself being marked in the suit. The question here was not one of the evidences being accepted as secondary evidence but whether on the very pleadings in the plaint and based on the entries the suit could have been decreed accepting the correctness of the entries in the Savings Bank account of the defendant even when the correctness of the entries had not been proved in any manner known to law. When the basis for making debit entries in the Savings Bank account had been knocked off for the reason that the plaintiff had not made good the entry as a valid entry, nothing further flows. Production of a certified copy of a statement of entries and balance in a Savings Bank Account of a customer by the Bank, while in the light of the provisions of Section 4 of the Bankers' Book Evidence Act (18 of 1891) which reads as under:
4. Mode of proof of entries in bankers' books - Subject to the provisions of this Act, a certified copy of any entry in a bankers' book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extend as, the original entry itself is now by law admissible, but not further or otherwise.
can be accepted as primary evidence, it does not amount that there is a presumption of the correctness of the entries and balance in favour of the Bank, even when the Bank does not prove the correctness of the entries and balance in the account by any other supporting material or circumstances.
15. It may be true that the plaintiff - bank might have issued ATM card in favour of the defendant and with a secret code privy only to the defendant through which the defendant could have operated and therefore inference for fastening liability on the defendant for the use of the card could have been made, if the transaction were in the normal course, the functioning of the ATM and computer were proper and in the normal course and the entries in the ledger books were in the normal course of banking transaction. Unfortunately for the plaintiff - bank none of these are so. It was the very case of the plaintiff that there was malfunctioning of the ATM machine; that link between the ATM machine and computer got snapped and therefore the ATM machine allowed withdrawals notwithstanding in Savings Bank account not having sufficient balance to allow the withdrawal. Apart from the merits of the contention, this is a clear admission of the malfunctioning of either the ATM machine or the computer in which event the provisions of Section 65-B cannot be pressed into service by the plaintiff, as if at all it acts against the claim of the plaintiff in the present situation as admittedly either the computer or the ATM was malfunctioning at the time of the drawal of the amounts, in which event the acceptability of the extract of the statement of accounts in the Savings Bank account of the defendant in terms of the provisions of Section 65-B(2)(b) read with Section 65-B(3)(b) is also not possible, as the entries are admittedly due to the sharing of data between the computer responsible for entries in the Savings Bank and the information in the ATM machine, and the ATM was malfunctioning at the relevant time of drawal of amounts from the ATM.
16. When the defendant had denied operating the ATM machine at all using the card, the burden was only on the plaintiff to prove, may be by calling in aid a presumption in favour of the plaintiff, but that has not happened in the present case. Even with regard to the ledger extract of the Savings Bank account it cannot even be said that the entries are in the normal course of banking business transaction. I say so because even in terms of plaint averments and the evidence on record, etc. while Savings Bank account of the defendant shows balance of Rs. 96/- on 31.3.1999; the claim of the plaintiff that a sum of Rs. 5,000/- was drawn on 20.4.1999 which makes the balance negative in the Savings Bank account of the defendant; but what is more inexplicable is that further drawals of Rs. 5,000/- on 25.4.1999 and again on 26.4.1999 which according to the bank were made without sufficient balance available in the Savings Bank account which remained negative and vary surprisingly the bank chose to issue a notice of these irregularities only on 10.07.1999 by addressing a letter to the defendant. Overdrawing of the Savings Bank account is not a normal banking practice. If the Savings Bank account should have been overdrawn the bank should have immediately apprised the customer and should have prevented further overdrawals.
17. On the other hand the first intimation of the irregularity of the Savings Bank account is intimated to the defendant through the letter dated 10.7.1999. There appears to be more irregular things than the transactions having taken place in the normal course of the banking practice and therefore any presumption which could have been drawn in favour of the bank, in terms of any statutory provisions does not follow in such state of affairs and therefore when the plaintiff had failed to make good the withdrawal by cogent and convincing evidence particularly, as attributable to the drawals through the ATM by the plaintiff alone, the suit claim could not have been decreed.
18. In this regard the learned trial judge failed to notice that the oral evidence of PW1 was not at all supportive of the contents of ExP5, extract of the statement of transactions and balance in the SB account of the defendant. While the learned trial judge appears to have proceeded on the premises that the contents of ExP5 should be taken as proved because of the provisions of the Bankers' Books Evidence Act 1891 and such presumption is drawn which is not proper as discussed above. What is more lacking is that the witness examined on behalf of the plaintiff Bank has not justified the correctness of the entry nor has spoken of the correctness of the entry, particularly as it was the case of the bank that the entries in the SB account were only reflective of the transaction in the ATM, which in turn is evidenced by ExP2 to 4, print outs from the ATM.
19. The adverse inference drawn against the defendant for not responding to the legal notice ExP8, its not justified in the context of the plaintiff not having cogently proved the case pleaded by it and particularly in drawing adverse inference about non-denial of ATM transactions in the reply of the defendant as per ExP7, which is totally unwarranted, as the learned trial judge has failed to take note that ExP7 was a reply in the context of ExP6 - request letter by the bank, requesting the customer to regularize the SB account - and not having made any mention of the drawals from ATM. As ExP6 letter did not make any mention of any withdrawal by the defendant from ATM, and there was no occasion for the defendant to deny that he had withdrawn any amount from ATM, as the question did not arise in terms of ExP6 request letter. The suit claim being decreed only by drawing such adverse inferences, it cannot be said that it is a proper conclusion or order.
20. I am of the clear view that the plaintiff had failed to make good the suit claim and the evidence on record did not support the claim for decreeing the suit. It is for this reason I allow this revision petition, set aside the judgment and decree dated 9.7.2003 passed in S.C.No. 15054/2000 on the file of the XVII Additional Judge, Court of Small Causes, Mayo Hall Unit, Bangalore and dismiss the suit. Parties to bear their own costs, throughout.
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On the other hand the first intimation of the irregularity of the Savings Bank account is intimated to the defendant through the letter dated 10.7.1999. There appears to be more irregular things than the transactions having taken place in the normal course of the banking practice and therefore any presumption which could have been drawn in favour of the bank, in terms of any statutory provisions does not follow in such state of affairs and therefore when the plaintiff had failed to make good the withdrawal by cogent and convincing evidence particularly, as attributable to the drawals through the ATM by the plaintiff alone, the suit claim could not have been decreed.
Karnataka High Court
Sri. P. Padmanabh S/O Papanna @ ... vs Syndicate Bank Limited, ... on 15 November, 2007
Equivalent citations: AIR 2008 Kant 42, 2008 (1) KarLJ 153
1. This revision petition under Section 18 of Small Causes Court Act is directed against the judgment and decree dated 9.7.2003 passed in S.C. No. 15054/2000 on the file of the XVII Additional Judge, Court of Small Causes, Mayo Hall Unit, Bangalore.2. The revision petition is by the defendant in the suit who has suffered a decree for payment of a sum of Rs. 17,133/- as claimed by the plaintiff with costs and current interest. The revision petitioner has urged inter alia that learned trial judge has failed to appreciate defence taken on behalf of the defendant; that the learned judge has not appreciated the evidence placed in support of the claim being not fully supportive of the suit claim; that the learned trial judge has wrongly applied the principles of law particularly in the context of Section 4 of Bankers Books of Evidence Act, 1891; that the judgment and decree is not tenable; that the revision petition is to be allowed and the suit should be dismissed.
3. Notice having been issued, respondent/plaintiff in the suit has entered appearance through counsel. Revision petition was admitted, records were called for and the matter is set down for hearing and I have heard Shri. Subramanya, learned Counsel appearing for the petitioner and Shri. Palakshappa, learned Counsel appearing for the respondent.
4. The brief facts as narrated in the plaint is that the plaintiff - a nationalised bank had issued a ATM card to the defendant; that the card enabled the defendant to draw money/cash from the ATM counter established by the bank and that the amount drawn by the defendant would be debited to the Savings Bank account maintained by the defendant with the bank; that it was linked to the Savings Bank account of the defendant; that the defendant could have drawn amounts from the ATM bank upto the extent of balance maintained in the Savings Bank account, but the defendant taking advantage of some snapping of link between the ATM and the computer maintaining the bank accounts and other transaction of the bank had drawn sums of Rs. 5,000/- on three days though there was no sufficient balance in the account. This fact having been noticed by the bank, later the bank had put the defendant on notice calling upon him to make good the amount; that amount having not been paid, a legal notice was also issued but the defendant not having responded positively to make good the amount, it had become necessary for the plaintiff to sue the defendant for the recovery of the amount, particularly, for the three transactions of drawal of Rs. 5,000/- on each occasion through the ATM machine by the defendant with costs and consequence.
5. The defendant on service of notice entered his appearance through counsel and had contested the suit claim. The defendant while admitted the maintenance of Savings Bank account and also the issue of ATM card by the bank, denied having operated ATM machine for drawal of the amounts as indicated in the plaint, pleaded that he had not withdrawn the amounts of Rs. 5,000/- on three occasions as pleaded and resorted to wholesale denial of other plaint averments.
6. In the light of such rival pleadings, the trial court had formulated the following four points as arising for its determination.
1. Whether the plaintiff proves that the defendant has withdrawn Rs. 5,000/- each on 20.4.99, 25.4.99 and 26.4.99 respectively even though he did not have so much of balance in his S.B. Account during that period?
2. Whether the plaintiff proven that the defendant is liable to pay the suit claim as claimed?
3. Whether the plaintiff is entitled for a judgment and decree as sought for?
4. To what order or decree?
7. The parties went to trial on these question. While plaintiff examined the Manager of the bank an PW1 and got marked documents Exs.P1 to P9, salient amongst which are the extracts of the transactions in the ATM machine as Exs.P2 to P4, Ex.P5 ledger extract of the Savings Bank account of the defendant, Ex.P6 letter calling upon the defendant to make good the amount, Ex.P7 reply of the defendant denying the transaction and denying the liability for payment and Ex.P8 legal notice issued by the bank before filing of the suit. The defendant blissfully kept silent throwing the entire burden on the plaintiff by denying the suit claim.
8. The learned judge on appreciation of such material before the court and giving importance to the extract of the Savings Bank account of the defendant - Ex.P5 and applying the provisions of Section 4 of the Bankers Books of Evidence Act, 1891 accepted this piece of evidence for fastening the liability on the defendant and also taking note of the fact that the defendant had chosen not to enter the witness box; that he had neither completed his deposition in chief nor was available for cross-examination. Therefore, ignoring the oral evidence the defendant had placed before the court by examining himself as DW1, proceeded to decree the suit. Another circumstance relied upon by the trial judge is that the defendant having admitted the issue of ATM card and suit claim being based on the plea that the defendant alone had access and use of the ATM card through the special code number which was required to be fed to the ATM machine for operating the card and the defendant not having chosen to explain all these aspects found that it is also a circumstance to decree the suit. The learned trial judge placed reliance on the entries as shown in the ledger book of the Savings Bank account of the defendant particularly, the entry having indicated balance as Dr. and therefore outstanding balance should be made good by the defendant.
9. It is such judgment and decree which is questioned in this revision petition. Submission of Shri. Subramanya, learned Counsel appearing for the petitioner is that the learned trial judge has erroneously decreed the suit; that the evidence placed by the plaintiff before the court was neither cogent nor complete to decree the suit claim; that the petitioner had not established the liability of defendant for payment of the amounts in terms of three withdrawal transactions through the ATM machine; that the defendant was enabled to withdraw amounts under the ATM card only upto the balance maintained in the account and not beyond and that special circumstance pleaded in the plaint regarding snapping of the link between the ATM machine and the main computer was never to the knowledge of the defendant but had no occasion to use the ATM machine; that even as admitted by the plaintiff there was malfunctioning of the ATM machine or the computer and therefore no presumption about the accuracy of the entries could have been drawn in favour of the plaintiff - bank; that the very fact the bank had allowed the Savings Bank account to become irregular and did not even care to apprise the defendant for more than three months is proof enough of the irregularity of the maintenance of books of accounts in the normal course of business; that therefore, no presumption could have been drawn and the learned trial judge, when had declined to draw the presumption in favour of the plaintiff in terms of Section 65-B(2) Clause (b) of Indian Evidence Act, 1872 with Section 65-B being as under:
65-B. Admissibility of electronic records
(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.
(2) The conditions referred to in Sub-section (1) in respect of a computer output shall be the following, namely:
(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;
(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;
(c) throughout the material part of the said period, the computer was operating properly or, if not, then in any respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and
(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.
(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in Clause (a) of Sub-section (2) was regularity performed by computers, whether -
(a) by a combination of computers operating over that period; or
(b) by different computers operating in succession over that period; or
(c) by different combinations of computers operating in succession over that period; or
(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers,
all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.
(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,
(a) identifying the electronic record containing the statement and describing the manner in which it was produced;
(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;
(c) dealing with any of the matters to which the conditions mentioned in Sub-section (2) relate,
and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.
(5) For the purposes of this section, -
(a) information shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;
(b) whether in the course of activities carried on by any official, information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;
(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment.
Nevertheless, the learned judge of the trial court erred in placing unwarranted reliance an Section 4 of the Bankers Book of Evidence Act, 1891 and has erroneously decreed the suit; that the suit was liable to be dismissed and therefore revision petition should be allowed and the suit dismissed. In this regard learned Counsel submits, that when the proper recording of the entries which are entries, inturn reflected in the ledger themselves are disbelieved, there was no occasion for the learned trial judge to place reliance on the reflected entries in the ledger for decreeing the suit claim and that too by erroneously drawing presumption in favour of the correctness of the entries with reference to of Section 4 of the Bankers Book of Evidence Act, 1891.
10. Per contra, Shri. Palakshappa, learned Counsel appearing for the respondent/plaintiff in the suit submits that the suit has been rightly decreed; that the transactions have all taken place in the normal course of banking business; that it is a fact the defendant had been issued with a ATM card which enabled the defendant to draw money from the ATM machine by using the confidential code which was exclusively in the knowledge of the defendant with the bank also not knowing the code number, etc; that when once that entries in the ATM machine indicated the three withdrawals, each transaction for Rs. 5,000/-, it necessarily follows that the revision petitioner who alone had access to the card and the code has drawn the amounts; that the ATM card being in the control of the revision petitioner it was the responsibility of the revision petitioner and the entries having been reflected in the Savings Bank account and the revision petitioner having been put on notice about the same; and having not made payment, the suit claim has been rightly decreed and calls for no interference.
11. Learned Counsel for the respondent/plaintiff submits that the trial judge has committed an error to the extent of disbelieving ATM extracts as pet Exs.P2 to P4; that he should have believed them in terms of the provisions of Section 65-B(2) Clause (b) of Indian Evidence Act, 1872 and also the entries in the Savings Bank account; that the extract of which had been placed before the court, has been rightly accepted but the disbelieving of the evidence in terms of Exs.P2 to P4 is on the erroneous impression that it had not been authenticated as a certified copy which infact was not necessary because of the provision of Section 65-B of the Indian Evidence Act, an amendment carried out to the Evidence Act as a sequel to the enacting of the Information Technology Act 2000 and Section 92 of the Act; but nevertheless, the suit having been rightly decreed there is no need to disturb the judgment and decree.
12. However, on this aspect Sri. Subramanya, learned Counsel for the revision petitioner points out that the disbelieving was proper as the Exs.P2 to P4 had not been property marked in order to make it good before the court in terms of provisions of Sub-section 4, of Section 65-B of the Evidence Act and therefore learned trial judge has rightly disregarded this piece of evidence.
13. The suit claim undisputedly is based on a transaction as indicated in the extracts of the ATM machine and ledger entry of the bank relating to the Savings Bank account of the defendant. In so far as the extract of the transactions in the ATM machine Exs.P2 to P4 are concerned the trial judge had disbelieved, this may be on a technical ground or for want of compliance with the provisions of Section 65-B(4) of the Evidence Act. When once these extracts are disbelieved there is no occasion for linking the disbelieved entries in the ATM transaction extracts to the Savings Bank account of the defendant. It is the case of the plaintiff itself that the entries in the Savings Bank account of the defendant are reflective and are only because of the entries as indicated in the ATM machine transaction extracts. When the original entries in the ATM extract itself is disbelieved or not believed there is no occasion for the court to pass a decree based on the ledger entries in the Savings Bank account of the defendant which were not proved independently nor was it the case of the plaintiff that it was independent of the ATM entries.
14. When once the link between the ATM entries and the ledger entries snapped, there is no occasion to place reliance on the entries in the ledger. Even here the learned trial judge has wrongly applied presumption available under Section 4 of the Bankers Book of Evidence Act, 1891 assuming that such presumption is available it can only amount that a certified copy of the ledger entries may be accepted as secondary evidence before the court even in the absence of the primary evidence of the ledger itself being marked in the suit. The question here was not one of the evidences being accepted as secondary evidence but whether on the very pleadings in the plaint and based on the entries the suit could have been decreed accepting the correctness of the entries in the Savings Bank account of the defendant even when the correctness of the entries had not been proved in any manner known to law. When the basis for making debit entries in the Savings Bank account had been knocked off for the reason that the plaintiff had not made good the entry as a valid entry, nothing further flows. Production of a certified copy of a statement of entries and balance in a Savings Bank Account of a customer by the Bank, while in the light of the provisions of Section 4 of the Bankers' Book Evidence Act (18 of 1891) which reads as under:
4. Mode of proof of entries in bankers' books - Subject to the provisions of this Act, a certified copy of any entry in a bankers' book shall in all legal proceedings be received as prima facie evidence of the existence of such entry, and shall be admitted as evidence of the matters, transactions and accounts therein recorded in every case where, and to the same extend as, the original entry itself is now by law admissible, but not further or otherwise.
can be accepted as primary evidence, it does not amount that there is a presumption of the correctness of the entries and balance in favour of the Bank, even when the Bank does not prove the correctness of the entries and balance in the account by any other supporting material or circumstances.
15. It may be true that the plaintiff - bank might have issued ATM card in favour of the defendant and with a secret code privy only to the defendant through which the defendant could have operated and therefore inference for fastening liability on the defendant for the use of the card could have been made, if the transaction were in the normal course, the functioning of the ATM and computer were proper and in the normal course and the entries in the ledger books were in the normal course of banking transaction. Unfortunately for the plaintiff - bank none of these are so. It was the very case of the plaintiff that there was malfunctioning of the ATM machine; that link between the ATM machine and computer got snapped and therefore the ATM machine allowed withdrawals notwithstanding in Savings Bank account not having sufficient balance to allow the withdrawal. Apart from the merits of the contention, this is a clear admission of the malfunctioning of either the ATM machine or the computer in which event the provisions of Section 65-B cannot be pressed into service by the plaintiff, as if at all it acts against the claim of the plaintiff in the present situation as admittedly either the computer or the ATM was malfunctioning at the time of the drawal of the amounts, in which event the acceptability of the extract of the statement of accounts in the Savings Bank account of the defendant in terms of the provisions of Section 65-B(2)(b) read with Section 65-B(3)(b) is also not possible, as the entries are admittedly due to the sharing of data between the computer responsible for entries in the Savings Bank and the information in the ATM machine, and the ATM was malfunctioning at the relevant time of drawal of amounts from the ATM.
16. When the defendant had denied operating the ATM machine at all using the card, the burden was only on the plaintiff to prove, may be by calling in aid a presumption in favour of the plaintiff, but that has not happened in the present case. Even with regard to the ledger extract of the Savings Bank account it cannot even be said that the entries are in the normal course of banking business transaction. I say so because even in terms of plaint averments and the evidence on record, etc. while Savings Bank account of the defendant shows balance of Rs. 96/- on 31.3.1999; the claim of the plaintiff that a sum of Rs. 5,000/- was drawn on 20.4.1999 which makes the balance negative in the Savings Bank account of the defendant; but what is more inexplicable is that further drawals of Rs. 5,000/- on 25.4.1999 and again on 26.4.1999 which according to the bank were made without sufficient balance available in the Savings Bank account which remained negative and vary surprisingly the bank chose to issue a notice of these irregularities only on 10.07.1999 by addressing a letter to the defendant. Overdrawing of the Savings Bank account is not a normal banking practice. If the Savings Bank account should have been overdrawn the bank should have immediately apprised the customer and should have prevented further overdrawals.
17. On the other hand the first intimation of the irregularity of the Savings Bank account is intimated to the defendant through the letter dated 10.7.1999. There appears to be more irregular things than the transactions having taken place in the normal course of the banking practice and therefore any presumption which could have been drawn in favour of the bank, in terms of any statutory provisions does not follow in such state of affairs and therefore when the plaintiff had failed to make good the withdrawal by cogent and convincing evidence particularly, as attributable to the drawals through the ATM by the plaintiff alone, the suit claim could not have been decreed.
18. In this regard the learned trial judge failed to notice that the oral evidence of PW1 was not at all supportive of the contents of ExP5, extract of the statement of transactions and balance in the SB account of the defendant. While the learned trial judge appears to have proceeded on the premises that the contents of ExP5 should be taken as proved because of the provisions of the Bankers' Books Evidence Act 1891 and such presumption is drawn which is not proper as discussed above. What is more lacking is that the witness examined on behalf of the plaintiff Bank has not justified the correctness of the entry nor has spoken of the correctness of the entry, particularly as it was the case of the bank that the entries in the SB account were only reflective of the transaction in the ATM, which in turn is evidenced by ExP2 to 4, print outs from the ATM.
19. The adverse inference drawn against the defendant for not responding to the legal notice ExP8, its not justified in the context of the plaintiff not having cogently proved the case pleaded by it and particularly in drawing adverse inference about non-denial of ATM transactions in the reply of the defendant as per ExP7, which is totally unwarranted, as the learned trial judge has failed to take note that ExP7 was a reply in the context of ExP6 - request letter by the bank, requesting the customer to regularize the SB account - and not having made any mention of the drawals from ATM. As ExP6 letter did not make any mention of any withdrawal by the defendant from ATM, and there was no occasion for the defendant to deny that he had withdrawn any amount from ATM, as the question did not arise in terms of ExP6 request letter. The suit claim being decreed only by drawing such adverse inferences, it cannot be said that it is a proper conclusion or order.
20. I am of the clear view that the plaintiff had failed to make good the suit claim and the evidence on record did not support the claim for decreeing the suit. It is for this reason I allow this revision petition, set aside the judgment and decree dated 9.7.2003 passed in S.C.No. 15054/2000 on the file of the XVII Additional Judge, Court of Small Causes, Mayo Hall Unit, Bangalore and dismiss the suit. Parties to bear their own costs, throughout.
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