DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

          Complaint Case No.: 811 of 2008

 Date of Inst: 21.07.2008

                       Date of Decision: 26.02.2010

Jasvir Singh s/o S.Malkiat Singh r/o H.No.67, Village Latton Dana, P.O.Chhandran, Tehsil and District Ludhiana, Punjab.

                                  ---Complainant

V E R S U S

1.   The Axis Bank Ltd., through its Chairman, 4^th Floor, Bara Khamba Road, Cannaught Place, New Delhi.

2.   The Branch Head, Axis Bank, Sector 8-C, Madhya Marg, Chandigarh.

---Opposite Parties

QUORUM       

              SHRI LAKSHMAN SHARMA         PRESIDENT

              SHRI ASHOK RAJ BHANDARI      MEMBER

ARGUED BY:    Sh.J.C.Batra, Adv. & Ms.Mamta Malik,

Advocates, for complainant

Sh.Ashok Paul Jagga, Adv. for OPs.

                            ---

PER LAKSHMAN SHARMA, PRESIDENT

                     Sh.Jasvir Singh has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed :-

i)              To credit a sum of Rs.11,00,000/- in the saving bank account (No.302010100080167) of the complainant.

ii)         To pay a sum of Rs.2 lacs as compensation for mental agony and harassment.

iii)    To pay costs of litigation.

2.        In brief, the facts as gathered from the pleadings of the parties as well as the documents placed on record are as under:-

          The complainant opened his saving bank account (No.302010100080167) with the OP-Bank on 17.04.2008. On 02.05.2008, he was having a sum of Rs.11,05,000/- in his account. On 24.06.2008, he visited the bank in order to withdraw the amount. However, he was told that he was not having sufficient funds in his account. The complainant moved an application (Annexure C-1) inquiring from OP-Bank as to how the amount has been withdrawn from his account without his signatures and authorization. He also moved another application (Annexure C-2) for issuance of statement of account.

          According to the complainant, the statement of account was not given to him. He was told that the bank was investigating into the matter. So ultimately, the complainant had to issue a legal notice to OP-2. On receipt of the said legal notice, OPs issued statement of account. After going through the said statement of account, the complainant came to know that a sum of Rs.11.00 lacs has been withdrawn from his account vide cheque No.13922 dated 03.06.2008.

          The case of the complainant is that neither the cheque book having the series of Sr.No.13922 was ever issued to him nor he issued the cheque in question for withdrawal of Rs.11.00 lacs. He even did not authorize any person to withdraw the said amount. Thus, OP-Bank cleared the cheque (which was not even issued to him) and made the payment without properly verifying his signatures on the cheque and without establishing his identity. According to the complainant, all the leaves of the cheque book issued to him are still with him (copy of the cheque book is annexed as  Annexure C-7/1 to C-7/20).  It has further been pleaded by the complainant that he made several representations to OP-Bank requesting it to pay him the amount of Rs.11.00 lacs but to no effect.

          In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.        In the reply filed by OP-Bank, it has been asserted that the statement of account clearly reflects that the account was debited in normal course of business relying upon the signatures on the relevant cheque.  The signatures on the cheque were duly compared by the staff of the Bank. Since the signatures appeared to be similar to the standard signatures of the complainant given to the Bank, the cheque was cleared and the amount was debited from the account of the complainant. It has further been pleaded that the leaf of the cheque was from the same cheque book which was issued to the complainant by OP-Bank. According to OP-Bank, the cheque was cleared and the amount was paid in good faith by observing all precautions and care. It has further been pleaded that OP-Bank was never intimated about the loss of the leaf of the cheque nor any instruction to stop the payment was given. In these circumstances, according to OP-Bank, it had no option but to clear the cheque and make the payment in the circumstances mentioned above.

          A number of preliminary objections have also been taken such as the complaint is bad for non-joinder and mis-joinder of necessary parties and that the complaint is barred by limitation.      It has also been pleaded that as complicated questions of law and fact are involved in this case, therefore, this Forum has no jurisdiction to entertain and try the complaint.

          Thus, according to OP-Bank, there is no deficiency in service on its part, so the complaint deserves dismissal.

4.        We have heard the learned counsel for the parties and have gone through the entire record including documents, Annexures, affidavits etc.

5.        It has been argued by the learned counsel for the complainant that amount of Rs.11.00 lacs was debited from the account of the complainant because of the deficiency in service on the part of OP-Bank. So the complainant is entitled to the relief mentioned above.

6.        The first deficiency pointed out by the learned counsel for the complainant is that the leaf of the cheque book which was used for withdrawing the amount from the complainant’s account was not from the cheque book issued to the complainant whereas the case of the OP-Bank is that the leaf of the cheque book which was cleared and on the basis of which the payment was made to Sh.Gurwinder Singh was from the cheque book issued to the complainant. The complainant has deposed in his affidavit that the leaf of the cheque which was used for withdrawing the amount was not from the cheque book issued to him. The complainant has deposed that all the leaves of the cheque book issued to him are still with him and he has not used any leaf from the cheque book so far. The complainant has placed on record the photocopy of the cheque book bearing Sr.Nos.058661 to 058680 (Annexure C-7/1 to C-7/20) issued to him. From the perusal of the same, it is clear that all the leaves of the said cheque book are intact and no leaf has been used.

7.        On the other hand, in the affidavit dated 23.09.2008 submitted by OP, it has been deposed that as per the record, a cheque book was issued to the complainant and the cheque leaf in question is from that cheque book issued to the complainant. The record concerning receipt of the said cheque book has been placed on record as Annexure R-1. 

8.        We have gone through the Annexure R-1. From the bare perusal of this document, it is apparent that a cheque book having 20 laves bearing Sr.Nos.058661 to 058680 was issued to the complainant. The said cheque book was delivered to the complainant on 24.04.2008. The photocopies of the cheques are attached by the complainant as Annexure C-7/1 to C-7/20, it shows that no leaf of the same has been used by the complainant for withdrawal of any amount.

9.        Annexure R-3 is the cheque bearing No.013922 dated 03.06.2008 for Rs.11.00 lacs which was cleared by the OP-Bank for debiting the amount from the account of the complainant. Thus from the documents placed by OP-Bank itself, it is apparent that the cheque used for withdrawal of the amount is not from the cheque book issued to the complainant. In these circumstances, OP-Bank should not have cleared the cheque and the amount in question should not have been debited from the account of the complainant.

10.       The next deficiency in service on the part of OP-Bank pointed by the learned counsel for the complainant is that the signatures on the cheque (Annexure R-3) do not tally with the standard specimen signatures of the complainant given to OP-Bank. So the cheque was cleared and payment was made without properly verifying the signatures of the complainant.

          In order to prove this fact, the complainant got the signatures on the disputed cheque compared with his specimen signatures on the account opening form. It is pertinent to mention here that as a criminal case has been registered with the Police Station Sector 3,  Chandigarh, the original record relating to the opening of the account and clearance of disputed cheque was with the police. So an application was moved by the complainant for summoning the said record before the Forum. On 03.09.2009, Sh.Bhagwat Dayal, Head Constable from the office of Economic Offences Wing of Police, Sector 17, Chandigarh brought the concerned record and Sh.Devendra Prasad, Handwriting Expert was permitted to take the photographs of the standard signatures from the original account opening form and of the signatures on the disputed cheque.  The complainant was permitted to get the signatures on the disputed cheque compared with his specimen signatures. Annexure C-11 is the report of Sh.Devendra Prasad, Handwriting Expert.

11.       In his affidavit, Sh.Devendra Prasad, Handwriting Expert has specifically stated that he has examined and compared the original disputed signature purported to be ‘Jasvir Singh’ as appearing on cheque No.013922 dated 03.05.2008 marked as Q-1 with the original standard signatures marked S-1 to S-3 as appearing on the savings bank a/c opening form of a/c No.30210100080167 dated Nil of the Axis Bank, Sector 8, Madhya Marg, Chandigarh and the signatures marked S-4 and S-5 appearing on Form No.61 dated 17.04.2008. As per report of Sh.Devendra Prasad, Handwriting Expert, the signatures on the disputed cheque (Annexure R-3) do not tally with the specimen signatures of the complainant on the account opening form. The detailed reasons for the conclusions arrived at by Sh.Devendra Prasad, Handwriting Expert have been given in his report (Annexure C-11).

12.       On the other hand, another report of another Handwriting Expert (Annexure R-5) has been placed on record by OP-Bank. However, no application was ever moved by the OPs for summoning the record concerning the original disputed cheque and the original account opening form which are available with the Economic Offences Wing of Police, Sector 17, Chandigarh. Mrs.Jassy Anand, the Handwriting Expert of the OPs in her affidavit has deposed that the disputed signatures on the cheque and standard signatures were obtained by her from the Bank.  But as mentioned above, the original documents i.e. original disputed cheque and the original account opening form etc. where the standard signatures of the complainant were available, were already with the Chandigarh Police. Nothing has been brought on record as to where from the disputed and standard signatures were taken by the handwriting expert of the OPs. Thus, from the material placed on record, it is not clear as to whether the signatures compared by Mrs.Jassy Anand, the Handwriting Expert of OPs are in fact the disputed signatures and the specimen signatures of the complainant.

     It was argued that the Handwriting Expert produced by the OP-Bank took the photographs of the photocopies of the disputed signatures on the cheque and specimen signatures on the account opening form and compared them. In her report (Annexure R-5), the Handwriting Expert has opined that the disputed signatures on the cheque bearing No.013922 dated 03.06.2008 and the standard signatures Marked as S-1 are of the same person.

          To our mind, the report submitted by Mrs.Jassy Anand, Handwriting Expert produced by OP-Bank cannot be relied upon and accepted because the photocopy of the signatures cannot form a good and standard basis for comparison. Any comparison of the photocopy of the disputed signatures with another photocopy of the specimen signatures is always not perfect as has been held in the case titled as Sh.Surjit Rai Vs. Sh.Prem Kumar Khera and Others reported in 1995(2) PLR-140(P&H).  In this case, it has been further held by the Hon’ble Punjab and Haryana High Court that the disputed signatures cannot be compared from the photocopy of the document because in these days of advance technology, the signatures of a person can be lifted from one document and put on another by super-imposition.

13.       Furthermore from the report submitted by Mrs.Jassy Anand, Handwriting Expert, it is apparent that she has compared the disputed signatures with only one standard signature of the complainant. This is also a wrong practice and does not give the correct results. In the standard book Questioned Documents by Albert S.Osborn (Second Edition) under the heading of “Standard of Comparison” at page No.27 it has been observed as under:-

“Notwithstanding the common practice of bankers in this regard, it is dangerous to base a positive and final conclusion that a suspected signature is genuine on a comparison of it with only one genuine signature unless it is a highly individualized and skilful signature. For comparison with a disputed letter, one good complete standard letter may be sufficient, but even in an inquiry of this kind, more writing should always be obtained if possible. Many errors in the examination of questioned writing are due to the fact that an adequate amount of standard writing is not obtained before a final decision is given.

     The competent examiner will decline to give any opinion until a satisfactory basis for an opinion is available and unlike the bank clerk, will usually decline to say that a suspected signature is genuine with only one signature for comparison. A suspected signature, however, may contain so many inherent qualities indicating that it is not genuine that one good standard signature may be sufficient on which to base a positive opinion that  it is not genuine.”

          Thus the report of Mrs.Jassy Anand, Handwriting Expert cannot be relied upon on this score also.

14.       Furthermore the report (Annexure R-5) submitted by Mrs.Jassy Anand, Handwriting Expert is based upon the similarities of the alleged disputed and alleged standard specimen signatures of the complainant. In the another standard book Hardless’s Disputed Documents, Handwriting and Thumbprint Identification etc. (Third Edition) at page 117, it has been opined that although two handwritings may show a number of similarities, a single consistent divergent factor is enough to hold that the writings are by different persons.  In her report, Mrs.Jassy Anand, Handwriting Expert has not been able to explain any of the points of divergence between the standard specimen signatures and disputed signatures. 

15.       On the other hand, the report submitted by Sh.Devendra Prasad, the Handwriting Expert of the complainant, he has mentioned a number of divergences which are basic in nature and show that the disputed signatures on the cheque in question are not of the person (complainant) who had signed the standard specimen signatures on the account opening form and elsewhere.

16.       We have also personally seen the disputed cheque as also signatures on the cheque and the standard original signatures of the complainant on the account opening form and have compared the same. To our mind also, the disputed signatures on the cheque in question do not tally with the specimen signatures of the complainant as on the bank account opening form. We are further of the opinion that even with the naked eye, it becomes clear that the signatures on the disputed cheque do not tally with the specimen signatures of the complainant on the account opening form as there are several significant differences/divergences in the features of letter formation etc.  in the disputed signatures.

          A close observation on the tenor of the cheque (Annexure R-3) also reveals another serious discrepancy in the body of the cheque. Although, the amount of the cheque has been written both in words and figures as per standard banking norms yet there is a significant cutting in the amount of the cheque as written in words. The word “LAKH” contains unauthenticated cuttings and overwritings due to which the cheque in question should not have been passed in question by the OP-Bank even after having a cursory glance at it, what to say of very careful and proper scrutiny of the term and tenor of the cheque.

          So it is proved beyond doubt that the identity of the account holder (complainant) and authenticity of his signatures on the disputed cheque was not properly and carefully checked and verified by the OPs before clearing the cheque of such a heavy amount in question, which according to us, is a clear and gross deficiency in service on the part of the OPs as has also been held in the following cases:-

i)   Karnataka Bank Ltd. Vs. Sachiya Travellers Pvt. Ltd. , IV(2005) CPJ-42.

ii)  N.Venkanna Vs. Andhra Bank-2006 (1) CPC-463.

iii) Abdul Razak and another Vs. South Indian Bank, Ltd., 2003(2) CLT (NC)-159.

iv)  Vijaya Bank Vs. Arya Central Trnasport Ltd., IV(2005) CPJ-363.

v)   Federal Bank Ltd. Vs. Arbee Star Maritime Agencies (P) Ltd., 2008(1) CLT (TN)-382.

vi)  SBI Vs. Amar Kumar Prem, 2005(2) CLT (Delhi)269.

17.       Faced with this situation, it has been argued by the learned counsel for OP-Bank that this Forum has no jurisdiction to entertain and try the present complaint as complicated questions of facts are involved in this case. It has been argued vehemently by the learned counsel for the OP-Bank that as per the pleadings of the complainant, the cheque is forged and that the OP-Bank in connivance with Sh.Gurwinder Singh has committed the fraud upon the complainant. According to the learned counsel, the facts so pleaded cannot be gone into by this Forum as the proceedings before this Forum are summary in nature. In support of this contention, the learned counsel for the OP-Bank has cited the following cases:-

a)              Daljit Singh Dogra Vs. Ing Vysya bank Ltd. and Others, 2009(4) CLT-23.

b)              Satish Chand Gosian and Anther Vs. Canara Bank, II(2009) CPJ-31

c)              Ashwani Kumar Kukreja Vs. M/s Puran Chand Jewellers-I(1994) CPJ-16.

d)              Devashhish Mitra Vs. The M.D., Lakshmi Varsha Co. and Anr-I(1992) CPJ-30 (NC).

e)              Doneria Iron and Steel Vs. UPSEB Power Corporation and Ors.- I(2008) CPJ-281 (NC)

f)              Upaasana Finance Ltd. Vs. Bank of Maharashtra and Others-1998(2) CPC-665.

          There is no dispute with the law laid down in the cases cited above. In all the above cases, in each case, complicated questions of fact were involved which required detailed investigations and enquiry. So it was held that under such circumstances summary proceedings of trial is not sufficient.

          In the present case, the questions which need determination are i) whether the disputed cheque which was cleared by the OPs and on the basis of which the sum of Rs.11.00 lacs was debited from the savings bank account of the complainant and paid to another bank was from the cheque book issued to the complainant or not? ii) whether the said cheque bears the signatures of the complainant or not. There is substantial material on record to decide these facts. No further detailed enquiry is necessary or required for determination of these facts. Therefore, the ratio of the cases cited above is not applicable to the facts and circumstances of the present case.

18.       It has further been argued by the learned counsel for the OPs that the complaint is bad for non-joinder of necessary parties. According to the OP-Bank, Sh.Gurwinder Singh was a necessary party as the amount of the cheque has been credited in his account after debiting the same from the account of the complainant. This argument of the learned counsel for the OP-Bank too has no force. The complainant has not claimed any relief from Sh.Gurwinder Singh.  The entire relief has been claimed by him against OP-Bank only because of the deficiency in service on its part.  Therefore, Sh.Gurwinder Singh is not a necessary party in the present complaint and he has rightly not been impleaded as a party in this case.

19.       Thus from the evidence discussed above, it has been conclusively proved that there is certainly a gross deficiency in service on the part of OP-Bank as it cleared the cheque for such a huge amount by debiting the amount of Rs.11,00,000/- in the    savings bank account of the complainant without properly checking and verifying the basic and fundamental fact, firstly as to whether the cheque being cleared by them was issued to the complainant or not and further without checking and verifying the signatures of the complainant properly and carefully with the specimen standard signatures of the complainant as appearing on the bank account opening form. Therefore, the complainant is entitled to the credit of entire amount of Rs.11.00 lakhs to his savings bank account with OPs on account of the loss of an equivalent amount suffered by him due to wrongful debit in his account.

20.       In view of the above findings, this complaint is allowed with a direction to the OPs to jointly and severally credit the amount of Rs.11.00 lacs in the savings bank account No.302010100080167 of the complainant on account of making wrongful debit entry dated 04.06.2008 for the like amount in the said account. OPs are also directed to pay to the complainant the sum of Rs.2 lacs as compensation for causing harassment, mental agony besides paying Rs.5000/- as cost of litigation. 

21.       This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which OPs shall jointly and severally  be liable to pay the said awarded amount of Rs.13,00,000/- to the complainant along with penal interest @ 18% p.a. from the date of filing of the complaint i.e. 21.07.2008 till its realization besides Rs.5000/- as cost of litigation.

22.       Certified copy of this order be communicated to the parties, free of charge. After compliance the file be consigned to record room.

Announced

26.02.2010

Sd/-

 (LAKSHMAN SHARMA)

PRESIDENT

cm

sd/-

(ASHOK RAJ BHANDARI)

MEMBER