This consumer  complaint  has  been filed by the complainant Capital Charitable & Education Society (Regd.) against the opposite party Axis Bank Ltd.

2.      It has been alleged in the complaint that the opposite party have paid various cheques from the account of the complainant, whereas those cheques were not issued by the complainant.  The complainant has made the following main allegations in the complaint:-

“(i).    That on checking of records, the complainant found cheque No.110004 lying in the school itself which was still blank and unused.  From this it became clear that the sum of Rs.1,50,000/- has been illegally withdrawn from the complainant’s bank account by the officer/employees of the opposite party bank.

(ii).     That on further verification it was revealed that on 15.07.15 there is a withdrawal of Rs.3,50,000/- vide cheque No.110027 which is shown as cash withdrawal.  No such withdrawal was ever made by the complainant. On verification it revealed that the said instrument, i.e., cheque No.110027 was issued for Rs.35,000/- in the name of Ms. Soma Guha.  However, Ms.Soma Guha neither went to the Bank nor withdrew this money.  However, the OP bank had manipulated the cheque and instated of Rs.35,000/- they fabricated it for Rs.3,50,000/- and made it payable to cash and withdrew the money.  This was absolutely an un-authorised and illegal act on the part of the opposite party and shows clear deficiency of service.  These acts have caused wrongful loss to the complainant.

(iii).    That another debit of Rs.1,50,000/- has been made in the Bank Account of complainant maintained with the opposite party on 04.02.2015.  Despite reminders and request no supporting document authorizing the withdrawal has been provided to the complainant by the Bank.  This amount also has been debited in the account of the complainant unauthorisedly and illegally by the officers of the opposite party. 

(iv).    That further verification revealed that a further total sum of Rs.5,50,000/- has been withdrawn from the account of the complainant to have been authorized vide 8 cheques on different dates for different amounts.  However, none of these cheques have been issued by the complainant nor this bears the signatures of the authorized signatory of the complainant. These cheques have been withdrawn within a period from 8.11.2014 to 31.7.2015.  The details of the cheques are given in the complaint.

(v).    Further, verification also revealed that a sum of Rs.4,12,365/- has been withdrawn from the account of the complainant through 18 cheques in the name of its employees.  However, none of these employees have obtained encashment of the cheques. These cheques have been withdrawn within a period from 12.05.2015 to 07.09.2015.

(vi).    As per the information available in bank, these cheques have been encashed in cash allegedly by the payee but none of the payee has obtained the money.  These cheques were issued to the employees of the complainant for meagre amounts but the amounts have been changed to make these substantial amounts.  Further on inquiry as to who has actually come to the bank to withdraw the cash, the bank has no information.  It is the settled practice and rule of the bank that in case of cash withdrawal through a bearer cheque, the person obtaining the money must put his name and signature on the back of the cheque.  A perusal of the copy of the cheques available with bank shows that some random marks have been made on the back of almost all the aforesaid cheques.  If one person decides to withdraw the cash on the basis of various instruments in different names, it was the duty of the bank to raise alarm, confirm from the account holder and to verify the identity of the person visiting the bank.  However, since the bankers were involved in the crime as such all the norms and rules have been flouted to cause wrongful loss to the complainant.

(vii).   That as per the practice, every month, complainant used to send a list of his employees alongwith the amount to be transferred in the account of respective employees to the opposite party along with a single cheque of the total amount required to be transferred in terms of this list.  List as well as the cheque was required to be duly signed by the authorised signatory of the complainant.  However, on verification it was revealed that without the list being signed, the amount has been transferred from the account of the complainant to the accounts of unauthorized persons by the opposite party bank.  The money has been transferred even in the accounts of the persons who are unconnected with the complainant.  This deliberate omission on the part of the opposite party has resulted into huge financial loss to the complainant.  By this act of the bank, the complainant has suffered a loss to the tune of Rs.32,37,414/-.

(viii).  That further verification revealed that further sum of Rs.60,11,500/- has been withdrawn in cash by using 24 cheques of self which were neither issued by the complainant nor signed by the complainant, still the money has been withdrawn out of the bank account of the complainant illegally and malafidely.  Like other cheques these cheques also do not have any identification of person who has received the money from the bank.  Few of the cheques do not even have any mark or signatures of the person receiving the payment.  The details of the cheques are given in the complaint.  These cheques are issued from 30.06.2014 to 15.09.2015.”

3.      It has been alleged in the complaint that the opposite party bank has not taken due care in passing various cheques.  It is alleged that there was a connivance of bank officials in making these fraudulent payments.  It has been requested that the bank be directed to pay Rs.1,73,92,591/- to the complainant. 

4.      The complaint has been resisted by the opposite party bank by filing the written statement wherein it has been stated that all the records have been taken away by the police under the inquiry and the case is proceeding before criminal court.  It has been further stated that the account no.912010043187369 is in the name of Indraprastha Global School Noida (IPGS) whereas the complaint has been filed by Capital Charitable and Education Society which is not the account holder.  Certain preliminary objections have been raised in the written statement by the opposite party.  It has been stated that the complainant has alleged fraud and forgery in various transactions, which have resulted in the loss to the complainant.  The cases of forgery and fraud cannot be looked into by a consumer forum, therefore, the complaint needs to be made before the competent court of civil jurisdiction.  Moreover, the complaint has been filed for recovery of the money from the opposite party and therefore, only a recovery suit can be filed against the opposite party before a competent civil court.  Moreover, an (FIR No.466 of 2015) under Section 420, 407,467, 468 and 471 of IPC, against Mr. Sachin Jain has been filed  in the matter by the complainant and already after investigation a charge- sheet has been filed by the police before the competent criminal court and the matter is subjudice there.  On the basis of these preliminary objections it has been requested to dismiss the complaint.

5.      Both the parties have filed their evidence by way of affidavit, which have been taken on record.

6.      Heard the learned counsel for both the parties and perused the record.  Learned counsel for the complainant reiterated the facts of the case as mentioned above and stated that the account is in the name of the school, which is being run by the Charitable Education Society.  It was further stated that the opposite party bank is taking the shelter under the fact that the records have been taken away by the police for investigation and they are part of the criminal case, which is pending before the competent criminal court.  This stand of the opposite party is not tenable because the opposite party should have kept full one set of all the documents, which were given to the police for their own record and they should have given specified reply for each of the cheques mentioned in the complaint.  In a complaint case if proper reply is not given for an allegation, then, the case of the complainant stands automatically proved.  Thus, the opposite party cannot get any benefit for their own wrong and the case of the complainant needs to be decided in favour of the complainant.

7.      It was further stated by the learned counsel for the complainant that the opposite party has taken a stand that the complainant is not a consumer as the school is charging fees from the students.  It was stated that the school is run by a Charitable Education Society and therefore, no question of profit is involved, rather, society is shouldering the expenses of their school to a great extent.  A charitable society is not meant for earning profit and therefore, is a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986.  In respect of this argument, learned counsel referred to the case of Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel & anr. Vs. H&R Johnson (India) Limited & Ors., (2016) 8 SCC 286, where it has been held that:-

17.   ……….The National Commission has reversed the order passed by the State Commission by wrongly applying the decision of M/s Kusumam Hotels Pvt. Ltd. case (supra) to the set of facts in the present case. In the said case, the complainant was a hotel, it was considered to be a commercial entity and therefore, it was kept out of the purview of the definition of ‘consumer’ under Section 2(1) (d) of the Consumer Protection Act, 1986. However, the National Commission has failed to appreciate the fact that in the present case, the appellant-Society is not a commercial establishment rather a registered society helping the adivasi students in their education by providing hostel facilities. The charges, if any, for accommodation in the hostel are for maintaining the hostel and not for making profit. Thus, the appellant-Society is consumer within the meaning of the term ‘consumer’ under Section 2 (1)(d) of the Consumer Protection Act, 1986. The National Commission has erroneously accepted the contention urged on behalf of the respondents in the revisional proceedings that supply of tiles to the appellant-Society by respondent no. 1 through its local agent is for commercial purpose. The said finding is based on the decision in M/s Kusumam Hotels Pvt. Ltd. case (supra), which case absolutely has no application to the fact situation.

8.      The learned counsel for the complainant further referred to the judgment of the Hon’ble Supreme Court In Canara Bank Vs. Canara Sales Corporation & Ors, (1987) 2 SCC 666 where the Hon’ble Supreme Court has held that negligence on the part of the account holder and delay in noticing the fraud by the complainant cannot be made ground for not accepting the complaint of the account holder.

9.      Learned counsel for the complainant further stated that the accountant of the complainant Mr. Sachin Jain was involved in fraud along with some bank employees and that is why the bank employees and officers overlooked the procedure and did not follow the procedure laid down for clearing of the cheques. In most of the cheques, it is not clear who has received the payments whereas it is mandatory to get the signature of the person receiving payment on the back of the cheque.  Various cheques, which have been issued in the name of the employees/societies/school have been encashed by somebody else, whereas the employees have stated that they have not presented the cheques before the bank.  When cheques are not signed by the competent person to sign these cheques, the bank has paid these cheques without tallying the signature from the competent person from their record.  Thus, there is clear negligence and inefficiency in service on the part of the opposite party bank and the complainant is eligible to get their money from the opposite party bank. 

 10.   On the other hand, learned counsel for the opposite party bank stated that they are not in a position to reply and satisfy the questions raised in the complaint as all the records have been taken away by the police authorities and the same are now the part of the criminal case that is going on before the competent criminal court. The charge-sheet has already been filed in the matter and therefore, the veracity of the complainant could only be known after the decision of the competent criminal court in the criminal case.  Learned counsel stated that the written statement has been filed on the basis of whatever records were available with the bank and may not entirely cover the true position, which the bank would have taken, had all the records been available with the bank.

11.    It was further argued by the learned counsel for the opposite party that the complaint is being filed stating that there has been fraud and forgery in various transactions at the level of the bank.  Clearly, this Commission is not competent to decide the case involving fraud and forgery.    It was further argued by the learned counsel for the opposite party that the complainant is not a consumer as huge fees has been charged by the complainant from the students in the school.  The school is earning huge profits that is clear from the figures given in the complaint for loss of the complainant and the cheques involved.  Had it been a genuine charitable society, so much amount could not have been there in the account of the school.  Therefore, the complainant could not be a consumer as the school is being run for commercial purpose and the account is being maintained for the commercial purpose.

12.    It was mentioned that the contents of para 6 of the complaint are denied.  It has been submitted that a confession statement dated 30.09.2015 by the Accountant of IPGS, Noida makes it apparent that it is the employee of the School who forged the signatures and cheques and admitted to have fraudulently withdrawn the alleged amounts, which fact is also reiterated by School’s own letter dated 03.10.2015 sent to the bank.  An F.I.R. No.466/2015 was registered against the said employee and the trial is pending. In respect of the complaint of the complainant that cheque No.110027 was issued for Rs.35,000/-, whereas the same has been encashed by somebody for Rs.3,50,000/-,the learned counsel stated, that due to wrong data entry this has happened.  Data of two cheques have actually interchanged and no money has been fraudulently withdrawn from the bank.  It is stated that cheque No.110027 was issued for Rs.35,000/- and cheque No.110026 was issued for Rs.3,50,000/-.  There was data entry error for cheque number for Rs.35,000/- wherein the cheque number was entered as 110027 in place of 110026.  Both the cheques were made payable to the bearer and were otherwise in order.  The allegations of fraud, forgery, cheating and conspiracy by the complainant are pending adjudication before the appropriate courts.  Learned counsel stated that as the charge-sheet has already been filed in the matter and the case is to be decided, no liability can be fixed on the bank for wrong payment if any.  It was further stated by the learned counsel that this matter involved complicated questions of facts and law, which cannot be decided in the summary proceedings before this Commission and the right forum for this complaint is civil court where the voluminous evidence can be produced and examined, as this matter involves voluminous evidence for each cheque as both the parties will be adducing evidence in respect of their stands.

13.    I have given a thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the record. The complainant has stated in its complaint that complainant is a Charitable Institution and running several schools in Delhi and NCR.  It has been stated that the complainant opened account for their school namely, IPGS, Noida with the opposite party bank.  The account is being operated by the society and therefore, I find no merit in the objections of the opposite party bank that the complainant does not have any privity of contract with the bank. Further it is seen that the account is a current account being operated by the society officers and therefore, society claims that it is a consumer of the opposite party bank.  As the complainant is a Charitable Institution, and is not involved in any profitable activity and therefore, relying upon the case of Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel & anr. Vs. H&R Johnson (India) Limited & Ors. (supra), I find that complainant is a consumer under Section 2(1)(d) of Consumer Protection Act, 1986.

14.    Now coming to the merits of the case, it is seen that the complainant has alleged in para 6 of the complaint that Rs.1,50,000/- has been withdrawn on the basis of cheque No.110004, whereas the cheque is lying unused with the complainant.  The opposite party bank in their written statement has not given any satisfactory reply rather, it has been only said that the “contents are denied.”  It has also been narrated in the reply against this para that the accountant of the complainant has confessed the guilt and the matter is pending before the criminal court.  Similarly, against the allegation for cheque no.110027 that this cheque was drawn for Rs.35,000/-, whereas Rs.3,50,000/- has been paid against this cheque, the opposite party bank has admitted this fact in the written statement, however, it has been alleged that this is due to faulty data entry.

15.    From the above, it is clear that Rs.1,50,000/- has been withdrawn against the cheque No.110004, whereas this cheque has not yet been used and is lying with the complainant.  This is a clear deficiency on the part of the bank.  Thus, the bank is liable to return the payments made against this cheque. Clearly the bank is liable to return Rs.1,50,000/- to the complainant.

16.    So far as cheque no.110027 for Rs.35,000/- is concerned, the opposite party has stated that the entry has been exchanged between cheque no.110027 and 110026.  Neither opposite party nor the complainant has submitted anything about cheque no.110026 and therefore, the version of the opposite party cannot be apparently accepted.  Hence, payment of this cheque is also shrouded in fraud and forgery.

17.    The complainant has also made a complaint about withdrawal of Rs.1,50,000/- from the complainant’s account, however, no details of this withdrawal have been given.  Even the  cheque number has not been given. In reply the opposite party has also not stated anything about this payment rather, it has been stated that the matter is pending before the criminal court and the original records have been taken away by the police.  No specific reply has been given for this withdrawal.  Clearly, this withdrawal is also shrouded in fraud and forgery.

18.    So far as other allegations of the complainant are concerned, they relate to payments of several cheques by the opposite party bank wrongly and fraudulently.  It has been stated that an amount of Rs.5,50,000/- has been fraudulently withdrawn from eight cheques (within the period from 8.11.2014 to 31.7.2015).  It has been alleged that these cheques have not been issued by the complainant.  It has been further alleged that an amount of Rs.4,12,365/- has been withdrawn illegally by way of 18 cheques.  These cheques are in the name of the employees of the complainant.  However, the complainant has alleged that the employees have not encashed these cheques.  It has been alleged that Rs.60,11,500/- has been withdrawn in cash by using 24 cheques which were neither issued by the complainant nor signed by the complainant.  It has been further alleged in the complaint that there is no identification mentioned at the reverse of these cheques as to who has received the payments of the cheques.  The opposite party has not given any details of the persons to whom these payments have been made.  Veracity of these cheques and their payments can only be established after having detailed examination of these cheques from the record of the bank which are not available on record for any examination.  Moreover, fraud and forgery have been alleged in respect of these cheques by the complainant and a consumer forum is not competent to decide the cases where fraud and/or forgery is involved in an extensive manner. 

19.    It is seen that there is no merit in the assertion of the opposite party that the complainant is not a consumer as the complainant is holding this account for commercial purpose.  So long as, the complainant is a beneficiary of the account holder and all the account holders of a bank are the consumers as held by this Commission in State Bank of India Vs. Pushapakala, R.P. No. 2343 of 2013, decided on 11.11.2016, wherein following has been observed:-

 “11.    The first point that requires consideration in the matter is whether the complainants fall under the definition of ‘consumer’ as per section 2(d) of the Consumer Protection Act, 1986.  The petitioner Bank have taken the plea that being applicants for the allotment of shares of a Company, the complainants did not come under the definition of ‘consumer’, as stated in the judgments relied upon by them and as brought out in the order passed by the District Forum.  In the present case, the complainants are maintaining a regular savings bank account with the OP Bank since 2005, and the said fact has not been denied by them.  It is clear, therefore, that they have been availing themselves of the services provided by the Bank and hence, they are consumers vis-a-vis the Bank.  The present case involves the dishonour of a cheque on the ground that the signatures on the said cheque did not tally with the signatures maintained by the Bank.  In this kind of situation, it is evident that the purpose for which the cheque was issued, does not carry any relevance, rather the main issue is whether the cheque was dishonoured in a rightful manner or not.  An account holder having a savings bank account may issue a cheque for any purpose, whether commercial or non-commercial.  It would not be fair to conclude that if the cheque was issued for a non-commercial purpose, the savings bank account holder will be branded as a consumer, but if the cheque is for commercial purpose, he will not come under the category of consumer.  This will obviously be quite an absurd situation.  It is held, therefore, that since the complainants were joint holders of a savings bank account with the Bank, they are definitely covered under the definition of consumer vis-a-vis the Bank”.

20.    This Commission has taken a consistent view that the cases related to fraud and/or forgery cannot be decided by the consumer forum as the proceedings in consumer forum are summary in nature. This Commission has held in the following case that the matter relating to fraud and forgery cannot be decided under the proceedings under the Consumer Protection Act, 1986.

 “P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC).  It has been held that:

“6.  Learned State Commission rightly observed as under:-

In Bright Transport Company  Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC), it was held by the National Commission that the complaints which are based on the allegations of fraud, forgery, etc. and trial of which would require the leading of voluminous evidence and consideration thereof cannot be entertained by the Consumer Fora.  In Oriental Insurance Company Ltd.  Vs. Munimahesh Patel 2006 (2) CPC 668 (SC), decided by the Hon’ble Apex Court; Reliance Industries Ltd.  Vs. United India Insurance Co. Ltd., I (1998) CPJ 13, a case decided by a four Member Bench of the National Consumer Disputes Redressal Commission, New Delhi and M/s. Singhal Swaroop Ispat Ltd.  Vs. United Commercial Bank III (1992) CPJ 50,  a case decided by a three member Bench of the National Consumer Disputes Redressal Commission, New Delhi it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided, by a Consumer Fora, proceedings before which, are summary in nature.” 

21.    Similarly, Hon’ble Supreme Court in TRAI Foods Ltd. Vs. National Insurance Company & Ors., III (2012) CPJ 17 (SC),  has observed:

“6.  The only question to be decided is, when should this jurisdiction be exercised by the Commission.  In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the Civil Courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy.  The Consumer Forums have been given the responsibility of achieving this object.  They were not meant to duplicate the Civil Court, and subject the litigants to delays which have become endemic in the Civil Courts.

7.  Although the reason given in the impugned order of the Commission for referring the present matter to the Civil Court is cryptic, we have been through the records filed before us and are satisfied that the Commission’s decision was correct.  There is no doubt having regard to the nature of the claim, the large amount of damages claimed, and the extensive inquiry into the evidence which would be necessary in order to resolve the disputes between the parties that this is not a matter to be decided summarily at all”

22.    It is important to note that in the present case more than 50 cheques are involved, which are stated to have been forged and payment received.  The criminal case has already been filed by the complainant society and the chargesheet has been filed against the accused persons.  This Commission in Bright Transport Co. Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC) has observed the following:-

 “3. Yet another reason why we would discourage the complainant from approaching this Commission is that as per the complainants there are several acts of forgery for which a criminal trial is pending. The said case is yet to be decided and the decision of the criminal cases may have a bearing on the claims made by the complainants in these complaints. This Commission has consistently taken the view in the past that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by this Commission.”

23.    The total amount which has been allegedly taken away through withdrawal of forged cheques is more than Rs.1.00 crore as given in the complaint and many cheques are involved.  Thus, this complaint involves complicated questions of facts and law and voluminous evidence would be required to reach to any conclusion and the same is not possible under the summary proceedings under the Consumer Protection Act, 1986.  In a case of fraudulent cheque withdrawals, this Commission recently in the matter of The Tax Publisher Vs. Chairman & Managing Director, UCO Bank and ors., FA No.106 of 2014, decided on 31.08.2017 (NC)., has although accepted the deficiency on the part of the bank, but has simultaneously observed:-

“12.     In CCI Chambers Coop. Hsg. Society Ltd. (supra) the Hon’ble Supreme Court highlighted the same principle as enunciated in Dr. J.J. Merchant (supra) to determine the question whether adjudication on the issue arising in the Complaint require a detailed and complicated investigation of facts, incapable of being undertaken in a summary and speedy manner. It was observed that the decisive test is not the complicated nature of the questions of fact and law arising for decision – the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of detailed and complicated method of recording evidence.”

24.    From the above, it is clear that when the questions of facts and law are not determinable in the summary proceedings under the Consumer Protection Act 1986, the consumer forum may treat complaint as non-maintainable before it.  In the above referred case there were only two cheques involved in the matter.  However, in the present case there are more than 50 cheques involved totalling to more than Rs.One Crore. From the enormity of canvas of the complaint involving huge number of transactions through forged cheques, this can be easily understood that adjudication of this complaint would involve enormous evidence which would not be possible in the summary proceedings under the Consumer Protection Act, 1986 before this Commission.

25.    From the above examination, it is quite clear that the matter in the present complaint except for the cheque No.110004 involves fraud and forgery, which are beyond the scope of examination in the proceedings under the Consumer Protection Act, 1986 in the present set of facts and circumstances.  Looking at the huge amount involved and the number of transactions being more than 50 involving forged cheques, the examination of this complaint would involve voluminous evidence and the same is not possible under the summary proceedings before this Commission.

26.     On the basis of above discussion, the following order is passed:-

ORDER

(a)     The complaint only in respect of cheque No.110004 is allowed and the opposite party Axis Bank is directed to pay Rs.1.50 lacs to the complainant along with 9% p.a. interest from the date of payment of this cheque till actual payment to the complainant.The opposite party shall also pay a litigation cost of Rs.25,000/- (rupees twenty five thousand only) to the complainant.The opposite party may transfer the awarded amount in the account of the school if the account still exists.

(b)  For rest of the complaint, I have reached to the conclusion that the transactions involve fraud and forgery right from the stage of issuance of the cheques to the stage of payment of these cheques to unidentifiable persons.  It has been already found that this Commission cannot entertain this remaining complaint where the allegations are based on fraud and forgery.  Accordingly, the remaining complaint is dismissed as not maintainable before this Commission.  However, the liberty is granted to the complainant to approach the civil court having jurisdiction to decide the complaint for redressal for the grievances.  The complainant shall be entitled to get benefit of Section 14 of the Limitation Act, 1963 for the period of pendency of this complaint before this Commission i.e. from 30.01.2017 till disposal of this complaint by this Commission.