(Delivered on 14/2/2017)

Per Mr. S.B. Sawarkar, Hon’ble Member

1. The present appeal  is filed against the order of the District Forum, Wardha, passed in consumer complaint No. 88/2010, dated 14/12/2010, partly granting the complaint and declaring deficiency in service by the opposite party ( short for OP. )The learned Forum directed the OP to get the indemnity bond at its cost from the complainant and provide him Rs. 26,000/-  with interest at the rate of 6 percent per annum from December 2008 till final payment. Also provide Rs. 5,000/- for physical and mental harassment and cost of Rs. 1,000/- to the complainant.  The above order to be complied in the span of 30 days from the date of the receipt of the order  and in case of  failure the directed amount will have to be paid  with interest at the rate of  Rs. 12 percent per annum from the date of the order.
2. The complainant Nos. 1  with complainant No. 2 in brief complained that  he has a joint saving bank  account with the OP. In May 2008, when complainant  withdrew Rs. 10,000/- from the account Rs. 29,106/- were in balance  present in the account. Then  some employee of the OP demanded the pass book of the complainant for account maintenance  purpose which they gave. Thereafter the complainant No. 1 went away on duty. On 22/4/2009 when complainant No. 2 went to deposit the amount in the bank, she was given the passbook given by the complainant to the  bank employee but she found that only an amount of Rs. 4,132/- was available in the pass book. Thus, the complainant found that some unknown person withdrew Rs. 26,000/- in quantities  guaranties  on different dates from  saving account kept with OP.  The complainant No. 1 made enquiries with the OP but  was given evasive replies. He also found that on 26/12/2008, the complainant was given a new passbook with  new account number  after which also Rs. 5,000/- were withdrawn from the account. Also on 29/12/2008, Rs. 2,000/- were deposited in the account  of complainant.  He then filed a complaint with the police station on 27/5/2009 and also sent a notice to the OP on 30/03/2010 with a request to return the said withdrawn amount of Rs. 24000/- with interest at the rate of 16 percent per annum. He  received wrong reply to the notice.
3. He therefore claimed that the amount  as above was withdrawn because of careless work of the OP employees. He  therefore suffered paucity of funds for his domestic expenditure and was required to spend money to come back  from his duty. He therefore claiming deficiency in service, filed the complaint before the Forum  with a prayer to provide the said withdrawn amount of Rs. 24,000/- with interest at the rate of 16 percent  per annum from the OP from 27/11/2008. Also direct the OP to provide him the compensation  for physical and mental harassment and expenditure  which he was required  to do for domestic work of Rs. 58,640/- with notice expenditure of Rs. 1000/- and cost of Rs. 5,000/-.
4. On notice, the OP appeared and countered the complaint admitting the joint saving account and the withdrawal of amount of Rs. 26,000/- and deposit of Rs. 2,000/- on different dates. The OP submitted that the complaint is filed with the police and it is being investigated. Hence the present complaint cannot be disposed off prior to the judgment of the Criminal Court and the report of the police investigation. The OP denied to have taken the passbook of the complainant and denied all the other allegations of expenditure on domestic count by the complainant.
5. The learned Forum heard both the parties and held that the amount on different dates were, withdrawn under the signature of the complainant. But the complainant did not withdraw the amount for which a complaint is filed with police. However when  the learned Forum saw the withdrawal slip, it found no signature of the person who received the amount. But it found that  the signature on the back side is also of the account holder only. He has not explained as to how his signature appeared on rivers side of the slip. There is a stamp of OP ( bank stamp) on the withdrawal slip but no signature of the writer of the slip and the officer of the OP. The complainant was not at the place of the bank, during the period when the withdrawal was done. There is no report from the Police regarding the enquiry conducted by them. Therefore the learned Forum held that when the amount is drawn from the account of the complainant, the OP should provide him that amount after taking indemnity bond from the complainant till the completion of policy investigation and the trial in the Criminal Court. Holding so the learned Forum held that the OP, the bank  did not verify the person and allowed  to draw the amount on the withdrawal slips is a deficiency in service for which  the complainant had to suffer mental agony. Hence the learned Forum passed the order as above.
6. Aggrieved against the order, the OP filed this  appeal. Hence is called as appellant. Advocate Mr. Lahiri appeared on behalf of the appellant. Advocate Mr. Moon appeared on behalf of original complainants who are referred as respondent Nos. 1 and 2. Both the parties filed their written notes of argument  with a request to treat them as oral  arguments.
7. The advocate for the appellant submitted that the learned Forum erred in passing the order when  no report of  police investigation was received. Also the respondent has claimed to have given his passbook  to the employee of the bank when the bank never demands the passbook. When nothing is proved against the bank, the learned Forum passed erroneous order. Hence it deserves to be set aside.
8. The advocate for the complainant reiterated the contents of the consumer complaint filed before District Forum. He also submitted that the amount was allowed to be withdrawn by the appellant without verifying the person receiving the amount. Hence the amount was withdrawn without knowledge of the respondent which indicates deficiency in service. The learned Forum therefore has passed the correct order which deserves to be confirmed.
9. We considered the contentions of both the parties. We find that the respondent has filed a complaint in which he has specifically informed that the passbook of the joint account was requested by the bank employee  for making entries in their account. But the respondent has not given the name of the employee to whom the passbook was given and how long the passbook remained with the employee,  who was the employee and what was his name. Whether he knows the name of the employee or whether the employee was identified by him to the police in the investigation. We also do not find the copy of the FIR filed by the respondent No. 1 before the Police.  It appears from the impugned order that the slips had the signature of the respondent. Thus, the crux  of the complaint becomes the passbook which the respondent gave to some person without establishing his identity and relation with the OP.
10. When no police report is on record and  when it is not known as to what is the outcome of the investigation by the Police, it is not possible to presume that the appellant committed deficiency in service by allowing the withdrawal of amount on the withdrawal slip filed in the saving account of the respondent under the signature of respondent. It is a known fact that the withdrawal with the withdrawal slip is allowed only when the withdrawal slip is accompanied with the passbook. When the respondent has suppressed the information of identifying the person to whom the passbook was given, it is not possible to accept his contention of deficiency of service by the OP in permitting the withdrawal. Also till it is not established whether the withdrawal of the amount was by forged slips or by pre-signed slips or by some other means, It cannot be a deficiency in service attributable to the appellant.
11. We find that the learned Forum did not properly evaluate the  complaint. The major lacuna in the complaint is of giving passbook to unknown person and claiming him to be employee of the bank which was material. It was necessary for respondent to identify him.
12. Thus the   learned Forum passed the order directing the OP to pay the amount by taking indemnity bond is not a correct order. Also in the absence of an outcome  and report by Police, the deficiency in service in not possible to be attributed to the appellant. Thus, the order stands erroneous and deserves to be set aside. We therefore set aside the order. We find the domestic difficulties faced by the respondent cannot be the responsibilities of the appellant and the appellant cannot be compelled to pay for it. However we make it clear that the respondent shall be free to approach appropriate legal Forum for getting compensation of the amount after the completion of police investigation and the judgment if any by the competent Criminal Court. Hence the order below.

ORDER

1. The appeal is allowed.
2. The order of the learned Forum is set aside.
3. In the event, the complaint stands dismissed.
4. Stay if any stands vacated.
5. Parties to bear their own cost.
6. Copy of the order be given to both the parties, free of cost.