By Purbaja Sarmah 
In the era of globalization, the communication and technology plays very imperative place in our day to day life. As it strokes all aspects of the society, hence it converts the entire world into a small village. Undoubtedly, internet highly touches the commercial sector of the every country. The banking sectors of different countries also influenced by this revolution of Information Technology. By adapting the new technological changes, instead of traditional banking system, the banks and other financial institutions in today’s world used the online banking or electronic banking or e-banking system. Generally, e banking involves every bank transactions which are taken place via electronic medium instead of person to person interactions.
Where the integration of IT sector and banking industry, advances the life of every human being; at the same time it works as a curse for a section of mankind. The fraudulent activities that has been taken place in the recent times in the area of electronic banking, creates a negative image in the mind of the customers. Along with the other banking frauds, the e-banking fraud becomes one of the major challenges for today’s banking industry. It involves the illegal banking activities through the medium of electronic communication devices. It includes any kind criminal intentional deceitful or fraudulent activity committed by using the electronic signals in order to gain the monetary benefit from the banking sector by depriving the legal right of the victims.
While dealing with the e banking frauds, according to a global survey conducted by FIS, a financial services technology firm; reported that India is a country which suffered from the highest rate of e banking frauds as compared to other countries of the world. In order to avert these e-frauds, various measures have been taken by different agencies. The banks and their e banking fraud preventive bodies played a major role here. One of the major weapons of preventing these e banking frauds is the legal framework which also provides the penal provisions for this deceitful acts. This is nothing but the efforts of the legislature to prevent this dreadful e banking frauds. They may either tried to pass a new legislation or amend the existing one. Though, due to the development of IT sector the legal principles also changed but e banking laws needs some more importance than other legal principle.
Therefore, the researcher in this research paper would like to make a comprehensive study on the legal outline for preventing these e-banking frauds and their efficiency to prevent these dreadful e-banking frauds in India.
Key words- E- Banking, E-Banking Fraud, legal framework, communication and technology
With the civilization of mankind, human being started adopting some of the standards for financial security. The banking system is one of the fundamental devices for the financial fortification of individual. It is the most significant fiscal wing of any country. These banking structures are old as the civilization itself. It is not that, only the modern societies depend upon this banking structure for maintaining the fiscal balance in the society but also the early civilization staring from 2000 B.C approved this banking system for maintaining the economic stability in the country. Gradually, during the period of 1900 internet started to became a useful application that even deemed to be a part of our day to day life instantly. Hence, e banking process developed with the idea of home banking. With the passage of time, the 21st century proved itself to be part of this digital ideology and hence in the late 20th and the 21st century, the e banking system became a core of all banking systems.
As a signatory country of WTO, India accepted the principles of Liberalization, Privatization and Globalization (LPG) which had resulted a rapid change in the financial system during late 19th century. Undoubtedly, one of them is the e banking. The international banking system would be a distant reality if technology is not updated the banking system. With the change of banking system in India, the laws relating to it also changes. But some of the traditional banking laws also applicable to e banking transactions. Therefore there exist some of the problems regarding e banking because of the lack of new straight laws which can deal with the new problems relating to e banking.
In relation to Electronic Fund Transfer (EFT) which is one part of e banking, first initiative was taken by Saraf committee in 1994; which was appointed to recommend and study about the technological issues relating to Electronic Fund Transfer (EFT). This committee has made some of the recommendations. They are like
- Establishment of EFT system, with bank net communication network.
- Enactment of EFT legislation in India.
- Development of card culture as well as t enhanced the training facility.
- Supply of new generation computers in banks and connect them with new technology.
After this in 1998 Narasimhan committee took initiative for EFT legislation and for the implementation of EFT in India.
In India there are various laws which deal with the banking system in India. Some of them also associated with e banking system. Moreover the role of Indian mother Criminal law i.e. Indian Penal Code, 1860(IPC) and the role of Information Technology Act, 2000(as well as the amendment of 2008) is important in relation to e banking laws. Some of the regulations relating to e banking are mentioned below.
The Reserve Bank of India Act, 1934 (RBI Act, 1934)
In the year of 1995 the RBI has constituted a committee proposing a legislation on EFT and electronic payments with the name of Shere Committee which recommended a set of EFT regulations by RBI under RBI Act,1934 and implementation of few Acts like of a few Acts like Electronic Funds Transfer Act, the Computer Misuse and Data Protection Act etc. as long term measures. Consequently; the govt. of India and RBI took step for such initiative. The proposed Information Technology Bill,1999 and Electronic Commerce Bill, 1999 was the result in such regard. These legislations seek to secure the electronic record, electronic signature, acceptance of digital signature, data protection, protection from computer crime etc. the EFT regulations which was framed by RBI includes only specific kind of EFT.
The Reserve Bank has taken the help of a consultant in drafting a new legislation on Electronic Funds Transfer System and proposing amendment to the Reserve Bank of India Act 1934.Though there were no such legislation made for e banking but the RBI circular guided the e banking sector in India. Moreover every bank has t take RBI’s approval while initiating new e banking services to the customers. In case of RTGS also RBI acts as a gateway by maintaining the transaction between the banks and the customers. However under the supervision of RBI a separate legislation has enacted for settlement of payment which develops a new era EFT in India. Though there were no specific kind of provision in RBI Act 1934 relating to e banking but RBI circular provides a direction to the e banking system in India.
Again RBI plays a important role in e payment system by making it compulsory for the banks to route their high value transactions through Real Time Gross Settlement (RTGS) and also by introducingNational Electronic Funds Transfer (NEFT) and National Electronic Clearing Services (NECS). And this is how RBI encourages the e payment system in India.
The Payment and Settlement System Act, 2007 (PSS Act, 2007)
The PSS Act, 2007 has been passed in the year of 2007, which has been set up by RBI for regulating and supervising the payment system in India and designates the apex bank i.e RBI as the regulator for that purpose and all related matters.
India has multiple numbers of Payment systems. From RTGS to ECS debit services the multiple number of e payment systems are supervised by this Act which is regulated by RBI. Sub section (5) of section 25 of the said Act provides for punishment for two years and twice of the amount of EFT or both, for dishonor of such EFT on par with the penalties stipulated for dishonor of cheques under the Negotiable Instrument Act,1881.
The Information Technology Act, 2000 (IT Act, 2000)
In the year of 1995 after the shere committee report the govt. of India has initiated to took steps for the promotion of IT bill 1999 and focusing upon the formation of the IT legislation in India to secure electronic records and signature, acceptance of digital signature, e contracts and prevent the computer crimes and to protect the personal data.
As a result the IT Act, 2000 was passed by the parliament in the year of 2000. The said Act provides legal framework for electronic governance by giving recognition to electronic records and digital signature.
This legislation also tries to prevent the e banking frauds taken place in day to day life. Some of the well known e banking frauds are-
- The cyber criminals devised the spy software to crack the passwords. They hack the computer system of banks and manipulate the data transfer the money from other’s account.
- Spam is also a kind of computer related crime, which takes place by any junk mail or unwanted message sent to users in their mobile phone email address. In banks also basically this kind of computer crimes taken place.
- Again phishing is also included under the purview of computer crime which is related with banking system. In phishing the victims are asked to give their personal information about them and asked to give their information relating to their bank accounts. Then the number and the password are used to carry out such illegal transactions on that victims behalf without his consent. In e banking system generally phishing email will ask the customer to follow a link and subsequently if the customer follows the link and log in his account his personal information are hacked and he loses control from his account.
- Apart from this various other cyber crimes are taken place in relation to e banking like transferring money illegally by using technology, spyware etc.
To challenge these problems in India Act was enacted and amended time to time. This Act provides the remedy in this regard.
Moreover some of the provisions of IT Act, 2000 also touches various area of e banking system. They are-
- Under IT Act one can file an application before an adjudicating officer appointed under section 46 of the IT Act by the central govt., claiming the breach of reasonable security by any corporate or financial institution.According to section 43A of IT Act,2000 provides that any, body corporate or financial institutions(which includes bank) who have failed to maintain the reasonable security procedures must pay damages or compensation to such person to cover the losses.Here the bank must have to prove that they have maintained reasonable security to prevent the fraudulent acts.
- Again under section 72A of Information Technology Act, 2000,(amendment of 2008)“disclosure of information, knowingly and intentionally, without the consent of the person concerned and in breach of the lawful contract has been also made punishable with imprisonment for a term extending to three years and fine extending to INR 5,00,000 (Approx. US$ 10750)”
- Again some of provisions related with the offences and penalties via electronic medium. They are more or less related with internet banking system. They are like dishonestly receiving the stolen computer resources and communication device( section 66B), Identity Theft(section 66C), Cheating by impersonation( section 66 D), violation of Privacy (section 66E), offences by companies( section 85) where companies includes any corporate body including banks.
- Moreover the digital signature which is legalized by the IT Act 2000,is an important component in Internet Banking.
This is how the IT Act, 2000 is related with the e banking sector and provides a legal framework in this regard.
The Negotiable Instrument Act, 1881(NI Act, 1881)
A negotiable instrument is a piece of paper enables a person to sum of money which is transferable in nature, from to person to another by mere delivery or endorsement or delivery. The negotiable instruments as recognized under NI Act, 1881 are – promissory note, bill of exchange, cheques.
Section 6 of the said Act cheque includes the electronic image of a truncated cheque in a electronic form. Again sub explanation I (a) of section 6 includes the meaning of cheque, which includes the “electronic format” of cheque. It is drawn in the electronic form by using any computer resources and signed via digital signature or electronic signature ( which is considered to be the most secure format of signature) with or without biometric signature. Again Explanation I (b) of the said section mentioned about the meaning of ‘Truncation of Cheques’. It means the truncation of cheque during the course of clearing cycle whether by bank or by clearing house whether by receiving or paying payment after generating the electronic image of transmission. This process provides for further limiting the movement of physical cheque in writing. This Cheque Truncating System(CTS) in India ,is an project taken by RBI in the year of 2010 with the intention of clearing the cheques in a faster way. Cheque truncation means stopping the flow of the physical cheques issued by a drawer to the drawee branch. The physical instrument is truncated at some point en route to the drawee branch and an electronic image of the cheque is sent to the drawee branch along with the relevant information like the MICR fields, date of presentation, presenting banks etc. It helps in preventing the cheque clearing fraud.
Again section 89 of the said Act that when a cheque is materially altered but it does not appeared to be materially altered, the banker is liable for the payment and such payment shall not arise and question in terms of such alteration. Again sub section 2 states that where a cheque is an electronic image of an truncated cheque and if any such difference arose between the electronic image and truncated cheque , then such difference would be the material alteration. In this process verification by the party is very important. Under the Act the, cheques would have to be presented for payment of drawee or drawer bank.
Indian Penal Code, 1860(IPC, 1860)
With the changing needs of the society laws are meant to be change. In the modern era with the growth of science and technology, the rate cyber crimes are also growing. Therefore to deal with the various crimes dealing the online services (also including e banking) the mother criminal law i.e. IPC has gone through various amended. Some of the amendment of IPC which is related with E banking and electronic records are mentioned below.
- Section 463 of IPC deals with forgery. The words of section 463 “Whoever makes any false documents or part of a document with intent to cause damage or injury”, substituted with the words “Whoever makes any false documents or false electronic record or party of a document or electronic record, with intent to cause damage or injury”. Hence the word electronic record has been added in the definition of forgery and if any person makes false document or false electronic record in order to cause damage to any other person or public or his property with the intention to commit fraud then he is called to commit forgery.
- Again section 464 of IPC deals with the provision for making false document. In this section also electronic signature is added by the Information Technology (Amendment) Act, 2008. Under this section various circumstances were added which is related with the banking laws also. A person is said to make false document or false electronic record if he fraudulently or dishonestly makes or transmits electronic record or part of any electronic record or if he fraudulently affixes any electronic signature. Again if he dishonestly signs, seal or execute, alter any document or electronic record or affix and electronic signature by taking advantage of his unsoundness, intoxication; then he is said to make false documents. This provision is related with the e banking procedures.
- Section 403, 404 and 405of IPC, 1860 related with the banking frauds. Section 403 related with the dishonest misappropriation of property, section 404 related with dishonest misappropriation of property possessed by deceased person at the time of his death. Again section405 related with the criminal breach of trust. Section 489A makes provision for counterfeiting the currency notes or bank notes they are related with the banking frauds.
This is how the Indian Penal Code 1860 is related with banking laws in India.
The Banker’s Books Evidence Act, 1891
The Banker’s Books Evidence Act 1891 was amended after the implementation of Information Technology Act, 2000. This amendment was the influence of the initiation of e baking in India. Section 2 ,clause 3 ,sub clause (a) of the Act states about the definition of Banker’s book which includes the accounts books or day book or any other day books relating to banking business whether it may be in written form or in any electronic form. The electronic formats includes the printouts or any kind of data stored in discs , flopy, or tape recording or any other kind of electro-magnetic devices where the data can be stored. This section tries to draw an parallel image of written form of recording and electronic form. The printouts or the electronic data should be certified by the bank manager or by a person who is in charge of the computer.
The Indian Contact Act, 1872
The Indian Contract Act, 1872 guided the contractual relationship between the parties under the Indian regime. For framing a valid contract there is a need for existence of two parties. One party is the proposer and other one is the acceptor. When the proposer proposed for a valid agreement, the acceptor must have to accept the proposal. And when the communication is from both the sides then the agreement goes one step closer for being a valid contract. With the advent of the communication technology a special kind of contract emerged, i.e. electronic contract (hereinafter E- Contract). Under this e contact the contractual relationship between the parties taken place in the digital or electronic platform. Section 10A of the IT Act, 2000 describes about the validity of the e-contract. Where in a contract the communication of proposal and acceptance or revocation is made in an electronic format or in electronic record; such contract is enforceable under the law. In case of online banking also this section 10A of IT Act is applicable. In case of the online banking the bank and the customer indulge in a contract under the electronic platform. Therefore their obligations are similar as in the case of e contract.
The Indian Evidence Act, 1872
As like the other legislations, the Indian Evidence Act, 1882 also give recognition to the electronic transactions. Various changes have been made to the said legislation to cope up with the IT laws of India. These changes in terms of electronic transactions are mostly related with the e banking. Following are some of the sections which have amended with the advent of IT Act, 2000-
- Section 3 of the Act states about the definition of evidence. Under this section the definition of documentary is mentioned. The words of section 3 substituted by “all the documents produced before the court including the electronic records for the inspection of the court; such statements are called documentary evidence.” Here, it means if any documents produced before the court which is in electronic format; for the examination of the court, then that statements are also regard as documentary evidence. Again under section 17 admissions can be made in oral or documentary or in electronic means.
- Again section 34 of the Act described about the relevancy of the books of accounts. Here it is mentioned that if any of the business entity habitually reserved any books of accounts in the course of his business whether in electronic or other form; such books of accounts are relevant under section 34 of the Act. Although this Books of Accounts are not the conclusive proof of the fact. Moreover section 47A of the Act states about the relevancy of digital signature when it is approved by the certifying authority. Again section 65B described about the admissibility of electronic records.
The Prevention of Money Laundering Act, 2000
Money Laundering is illegal process of concealment of original identity of the actual money holder which is obtained illegally. Section 3 of the Money Laundering Act, 2000 states money laundering as a criminal offence. This section states that a person is committing the offence of money laundering if he directly or indirectly attempts or indulge in a crime of concealment, acquisition and possession or use and projecting or claiming it as untainted property. It’s an illegal method of hiding the identity, source and destination money in order to gain illegal profit from it. Recently developed online banking facilities makes the money laundering process easier as it involves the direct withdrawal and depositing system without any involvement of banks. The concept of money laundering includes the three layered process of placement, layering and integration. Firstly, placement put the unclean money into legitimate financial system. Secondly, layering hides the source of money through the series of transaction and finally in the last step in the process of integration the laundered money is withdrawal from the legitimate account for being used.
In order to prevent the money laundering through the medium of e banking the RBI has taken a major step by introducing a specific guideline in 2012. RBI in year of 2012 released a master circular relating to KYC and anti- money Laundering status/obligation of banks under PMLA, 2002 .The Customer Acceptance Policy must ensure that explicit guidelines are in place on the following aspect of customer relationship in bank.
- “No account should be made opened in anonymous or fictitious/ benami name”. It is the duty of the bank to not allow opening or keep any anonymous or fictitious name or account on behalf of other person whose identity has not been disclosed or cannot be verified.
- “Parameters of risk perception are clearly defined in relation to the nature of the business activity, location of customers and clients, mode of payments, volume of turnover, social and financial status etc, to enable the categorization of customers into low, medium and high risk”. There arises the need for very high level of monitoring if considered necessary.
- With the development of technologies the banks adopted the internet banking system which increases the money laundering threats. The banks should have to pay special attention to the money laundering threats which may arises for adoption of internet banking which might support anonymity, and take measures, if needed, to restrict their use in money laundering. Where banks issued electronic cards, customers use them in buying of goods and services, withdrawing and depositing money etc. while issuing the cards banks should have ensure full compliance with all KYC/CFT guidelines issued time to time, in respect of all cardholders. Before issuing the cards to the customer’s banks should ensure that proper KYC procedures are fulfilled.
- The banks should have to properly analyze the cases where they find the unusual operations in accounts where the large numbers of cheques are issued bearing similar dates/amounts. The bank should discuss the matter to RBI and the Financial Intelligence Unit of India.
It is very difficult to prove money laundering under the e banking transaction; therefore these norms are released by the RBI. Section 4 of the said Act states for the punishment for money laundering which is 3 years and can be extended up to 7 years and shall liable for fine.
Hence, the e banking sector in India is guided by these laws .There was not such particular legislation which solely guided the e banking in India .Even the term “E-Banking” is not mentioned anywhere. But these laws somehow managed the e banking sector in India but the deficiency of laws in the e banking sector might be one of the cause of e banking fraud.
Though it takes time to establish e banking sector as a baking industry in India, but it works smoothly to reduce the problems that usually taken place while adopting the traditional paper based transactions. With the various advantages, the e banking sectors captures some of the disadvantages.
One of them is the lack of legislation in relation to e banking sector. There are various legislations in India dealing with the banking sectors of India. Among them there are very few legislation which mention about the e banking structure. The Banking Regulation Act, which is one of the major legislation in relation banking law is silent in terms of e banking sector. The IT Act, 2000 which is related to cyber laws of India ,is more applicable in terms of e banking industry. The frauds relating to e banking generally dealt by IT Act,2000 and IPC,1860. Some provisions of IPC amended by this IT Act,2000 for dealing with crimes relating to electronic medium.
The enactment of a proper legislation in relation to e banking will be the most effective solution for this e banking fraud. As the numbers of e banking fraud is increasing day by day, it is the time where the legislature should aware of this issue and shows their consciousness by framing an effective legislation. Moreover, the customer’s awareness and carefulness is most important here.
Hence, in my view-
- Customer’s awareness programs arranged by the banks.
- Customers self awareness
- Enactment of a legislation particularly dealing with the e banking sector, can only eradicate this problem.
Moreover it is the responsibility of the govt. also to take initiative for the promotion e banking industry as it is one of the most reliable sources of country’s economy. A collective effort of the banks, customers and the govt. collectively should have to take proper initiatives for removing the e frauds from Indian banking industry.
 Alumni of National Law University and Judicial Academy, Assam
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