BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION
AT HYDERABAD.
F.A. 448/2008 against C.C. 14/2006, Dist. Forum, Ranga Reddy
Between:
G. Murali Krishna Rao
S/o. Late Rameshwara Rao
R/o. 7-1-195, 1st floor
Maruthi Veedhi
Secunderabad-03. *** Appellant/
Complainant.
. And
Andhra Bank
Rep. by its Senior Branch Manager
Plot No. 50, Anupuram, Kapra
Sainikpuri, ECIL X Roads
Hyderabad-62 *** Respondent/Op
Counsel for the Appellant: M/s. A. Narayana Rao
Counsel for the Resp: M/s. A. Madhava Reddy
CORAM:
HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT
&
SMT. M. SHREESHA, MEMBER
FRIDAY, THIS THE TWENTY NINETH DAY OF OCTOBER TWO THOUSAND TEN
Oral Order: (Per Hon’ble Justice D. Appa Rao, President)
*****
1) Appellant is unsuccessful complainant.
2) The case of the complainant in brief is that he got an S.B. account with the respondent Andhra Bank operating it from December, 2003 with cheque book facility. While so on 16.2.2004 the bank had paid Rs. 40,000/- under a forged cheque submitted by some unknown person which he could know from the statement issued to him on 27.2.2004. When contacted the bank, it sent the cheque to forensic lab which confirmed that it was a forged one. However the bank failed to pay back the amount and kept quiet without refunding the amount. It amounts to deficiency in service and therefore claimed Rs. 40,000/- with interest besides compensation of Rs. 5,000/- towards mental agony and costs of Rs. 3,000/-.
3) The bank resisted the case. While admitting that the complainant was its customer having cheque facility it denied that an amount of Rs. 40,000/- was paid on 16.2.2004 from his account on a forged cheque. Since the signature was very close to the specimen signature of the complainant having scrutinized and in good faith paid the amount His signature on the instrument was tallying with specimen signatures. Since the complainant slept over the matter for more than two years the complainant was liable to be dismissed. The very complainant by his letter dt. 22.5.2004 mentioned that the cheque book was stolen, lodged a complaint with the police however without any evidence of its outcome. The amounts said to have been drawn by his legally wedded wife. She has been staying with him. Therefore it lodged a complaint before the police and the matter is under investigation. Therefore it prayed for dismissal of the complaint with costs.
4) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A9 marked while the respondent bank filed the affidavit evidence of its Chief Manager and got Exs. B1 to B4 marked.
5) The Dist. Forum after considering the evidence placed on record opined that though the complainant had given a report to the police on 26.2.2004 that his house was burgled and he lost his cheque book, and pass book etc. however Ex. A3 bank statement shows that the cheque was presented on 16.2.2004 itself, and an amount of Rs. 40,000/- was withdrawn. No doubt hand writing expert opined that his signature was forged. The very complainant admits in Ex. A3 that earlier cheques and vouchers were signed by his wife. Therefore it was mischief played by the complainant. He ought to have filed the affidavit of his wife. From the above circumstances it cannot be said that there was deficiency in service on its part, and therefore dismissed the complaint.
6) Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that admittedly his signature was forged and an amount of Rs. 40,000/- was withdrawn. Earlier his wife used to fill up the cheques and did not sign at any time. There is no proof that the amount was paid to a known person and therefore prayed that the claim made by him be granted to him.
7) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
8) It is an undisputed fact that the complainant was having an S.B. account with the respondent bank with cheque book facility. On 16.2.2004 an amount of Rs. 40,000/- was paid by the bank on a forged cheque to an unknown person. The complainant having found that an amount of Rs. 40,000/- was debited in his account approached the bank and found that the signature on the cheque does not belong to him. He made a representation under Ex. A7. Admittedly the bank had sent the cheque in dispute to the hand writing expert along with cheques that were issued by him along with vouchers to Directorate of Forensic Science, Hyderabad. After considering all the signatures opined that the signature on the disputed cheque does not all with other signatures and opined that he did not write the ‘blue enclosed signature’ Despite the fact that it was a forged cheque the bank did not reverse the entry by crediting the amount that was illegally debited by it.
9) The complainant issued a complaint to the police on 26.2.2004 alleging that some unknown offenders had committed theft of cheque book and pass book etc. While he mentioned that he was staying along with his wife, he scored off the word ‘wife’ in the said complaint Ex. A1. On 27.2.2004 he issued a letter to the bank to stop payment under the said cheque We may state that already by then an amount of Rs. 40,000/- was debited in his account. From this obviously the complainant intends to explain loss of cheque. The fact remains that on 16.2.2004 itself cheque was encashed. Be that as it may the bank informed the complainant stating
“ With reference to your complaint regarding withdrawal of amount from your S.B. account, we wish to inform you that the matter was referred to our higher authorities. In response, we are informed, that based on the forensic report, it is found that the money was withdrawn from your account by the same person who has filled in the earlier three credit vouchers in your account. Please inform us the details of the person, viz., 1) Name 2) age 3) address) 4) Relationship with you, so that further action may be initiated.” Vide Ex. A6 dt. 29.1.2005. The complainant gave reply under Ex. B4 dt. 31.1.2005 by mentioning “with reference to your letter vide No. 0327/28 dt. 29.1.2005 against my complaint regarding Rs. 40,000/- drawn from S.B. A/c. No. 22853, Andhra Bank, Sainikpuri Branch, cheque bearing No. 0424219 in the name of Latha dt. 16.2.2004 by forging my signature. The challans writing for my S.B. a/c name G. Lakshmi aged 37 years, relationship, wife. So kindly note the above details and take necessary action”
Obviously his wife has been withdrawing the amounts, evident from various cheques and vouchers filed in this regard enclosed to Ex. B2. However, in none of these cheques his wife has forged the signature of his husband for withdrawing the amount. The only cheque pertaining to this transaction was forged if we may say so not by his wife but for which other vouches were singed and cheque could not have been presented by her obviously prima facie due to differences between them.
10) Despite a protest was made by the respondent bank to file affidavit of his wife, he did not do so. Obviously employees of the bank, who were all through passing the cheques basing on the cheques issued by his wife had cleared this cheque also without verifying the signature. Admittedly the signature on the disputed cheque does not conform to the signature of the complainant. The employees ought not to have passed the cheque solely on the ground that his wife had issued the cheque. It ought to have verified whether the signature was that of the complainant or not. We may also mention herein that the bank also did not keep quiet. It had given a police report which according to it was pending. The bank could not state the outcome of the investigation, though six years had been elapsed. The said evidence would be vital to determine the complicity of complainant if any, in the transaction.
11) The fact remains that the employees of the bank had honoured the forged cheque, paid the amount to a third party. This amounts to deficiency in service. The bank ought to have realized the amount from the erring employee and paid to the complainant, or it could have filed a complaint if it really suspects that the complainant and his wife were hand in glove to withdraw the said amount or initiated action whereby they could recover whatever amount that was paid under forged cheque.
12) At this juncture it is useful note that Hon’ble Supreme Court in M/s. Hyderabad Commercials Vs. India Bank and others reported in 1991 SC 247 considering the unauthorised transfer of amount by the bank from account of one customer to another despite admitting its liability but raising plea subsequently that transfer was on party’s oral instructions opined that such contention would not be available. In the light of above decision we are of the opinion that the Dist. Forum did not appreciate the facts or law in correct perspective.
13) In the result the appeal is allowed setting aside the order of the Dist. Forum. Consequently the complaint is allowed directing the respondent bank to pay Rs. 40,000/- with interest @ 9% p.a., from 16.2.2004 till the date of realization together with costs of Rs. 5,000/-. Since interest is being awarded, we do not intend to award any compensation towards mental agony in this regard. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 29. 10. 2010
*pnr
“UPLOAD – O.K.”
