PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that the Opposite Party No.2 be directed to pay the Complainant Company an amount of loss and or compensation to the tune of Rs.2,02,000/- due to the deficiency in service of the Opposite Party No.2. The Complainant has also prayed for cost of the complaint and such other reliefs as this Forum deems fit.
2) According to the Complainant, the Complainant is Private Limited Company carrying on it’s business at the address mentioned in the cause title of the complaint. The Complainant Company has duly authorized its one of the Director Mr. Satyapriya Arya to file the complaint against the Opposite Parties vide its Board Resolution dtd.13/08/2012. The copy of which is marked at Exh.‘A’. It is alleged that the Opposite Party No.1 is a Head Office of the Opposite Party No.2 and it is formal party in this complaint. The Opposite Party No.2 carries on the business under the control, supervision and direction of the Opposite Party No.1 through its Manager who manages all its affairs and responsible for day to day conduct of the business.
3) According to the Complainant, it is having its current account with the Opposite Party No.2 bearing Current Account No.149010200006545 for last several years. The said account is operated by the Complainant through its authorized officer or through its Director including the Director who is authorized to file this complaint as per the facilities offered and terms and conditions of operation and understanding between the Complainant Company. It is submitted that the Director of the Complainant sometimes personally use to visit and deposit the amount by cash/cheques in the bank and or the officer/person of the bank visit the place of Director/Company Office and collect the amount and on receipt of the said cheques/cash the officer/person of the Opposite Party No.2 used to give endorsement on the pay-in-slip of the bank in which relevant details being filled in and use to put the round rubber seal of the Opposite Party. It is submitted that this is the normal banking practice as per the banking rules and regulations of the common mode of operation. It is alleged that several times the officer of the bank had come to the place of Director and had collected the money for the purpose of crediting the same in the above account of the Complainant Company. It is submitted that there was never any complaint in respect of service provided by the Opposite Party. According to the Complainant, as per the Exh.‘B’ the Officer of the Bank issued one of the pay-in-slip in respect of which the amount had been collected by him from the residence of the Director of the Complainant Company. It is alleged that on 13/08/2010, the Complainant called upon the officer of the bank to his place of residence for collection of cash amount and handed over Rs.1,50,000/- for crediting the said amount in the aforesaid current account of the Complainant. It is alleged that upon receipt of the cash amounting of Rs.1,50,000/- the officer/person concerned gave endorsement on the pay-in-slip by putting his signature as well as rubber stamp of the bank. It is submitted that on the same day the Complainant further deposited Rs.1,59,500/- by cash with the Opposite Party No.2. It is alleged that on 13/08/2010 in all the Complainant Company deposited Rs.3,09,500/- with the Opposite Party No.2. The copies of the pay-in-slip are marked as Exh.‘C’. According to the Complainant, since the maintenance of Company’s account is being carried out by the Account Officer of the Company, the pay-in-slip as to deposit were handed over to him who filed the same in the Companies record. It is submitted that the Complainant felt that as per the pay-in-slip an amount of Rs.3,09,500/- had been credited in the Companies current account. It is submitted that in view of the previous experience and their being never any complaint in record to the credit of the amount handed over to the officer/person of the Opposite Party No.2, the Complainant never bothered to check the account as to credit of the amount in the Companies account for many months.
4) According to the Complainant in the month of July, 2011 when the Companies accounts were audited for the purpose of filing the yearly returns of the Company with the Income Tax Department it was revealed that the amount of Rs.1,50,000/- dtd.13/08/2010 was not depicted in the Company account and the same was not credited in the Companies account. It was noticed that however, the other amount of Rs.1,59,500/- was duly credited in the account of the Complainant Company.
5) According to the Complainant, when the said fact was brought to the notice of the Director of the Complainant Company, the Director of the Complainant Company on the next day approached to the Manager of Opposite Party No.2 and showed the Company pay-in-slip of the amount of Rs.1,50,000/- which was not credited to the Complainant’s account on 13/08/2010. The said Director of the Complainant asked the Opposite Party No.2 to verify the same and do the needful. It is alleged that however, the Manager of the Opposite Party No.2 avoided and neglected to show the credit of the aforesaid amount to the Complainant’s account. The Opposite Party No.2 also threatened that the Complainant can follow its own course and the Opposite Party No.2 will not credit the said amount to the Complainant’s account.
6) The Complainant orally requested the Opposite Party No.2 to comply and credit the amount of Rs.1,50,000/- to the Complainant’s account which was deposited on 13/08/2010 by visiting several times to the Opposite Party No.2. The Complainant thereafter, issued letter dtd.20/08/2011 and brought all the said facts to the notice of the Opposite Party No.2 but the Opposite Party did not give any reply to the said letter. The copy of the Complainant Complainant’s letter dtd.20/08/2011 is marked as Exh.‘D’. The Complainant thereafter, issued notice through Advocate on 15/10/2011 to the Opposite Party No.2 and called upon to credit the amount of Rs.1,50,000/- in the account of Complainant and also informed the Opposite Party No.2 that failure to comply the Complainant will take legal action. It is submitted that the said notice was received by the Opposite Party No.2 but the Opposite Party No.2 did not credit the amount and did not give any response or reply to the notice of Complainant’s Advocate. The copy of the said notice is marked as Exh.‘E’. It is submitted that the Complainant Company also made complaint in respect of the aforesaid fact to the Malabar Hill Police Station and craves leave to refer to and rely upon the copy of complaint when produced. According to the Complainant, Opposite Party No.2 and its Manager even after making repeated requests and notices had failed to do the needful which amounts to gross negligence and deficiency in service on the part of Opposite Party No.2. The Complainant has therefore, prayed to credit the amount of Rs.1,50,000/- and interest @ 9% p.a. from 13/08/2010 to the tune of Rs.22,000/-. The Complainant has also prayed Rs.50,000/- towards cost of harassment and Rs.25,000/- towards legal cost and claimed total amount of Rs.2,47,000/-, however, in the prayer clause the Complainant has prayed for Rs.2,02,000/- as mentioned in the para no.1 of this order.
7) The Opposite Party Nos.1 & 2 contested the complaint by filing written statement. It is contended that the complaint has been filed with false, frivolous, distorted facts with malafied intention and without any cause of action by the Complainant Company. It is contended that the complaint has deliberately suppressed the material facts and on that count the complaint is liable to be dismissed with cost.
8) The Opposite Parties have not disputed that the Complainant Company is having current account as alleged in the complaint with the Opposite Party No.2. It is submitted that besides the above account Mr. Satyapriya Arya is also maintaining one Saving Bank Account and he is very particular, regular and punctual in his banking transaction. According to the Opposite Parties and particularly Opposite Party No.2, on 13/08/2010 Mr. Satyapriya Arya requested the Opposite Party No.2 to depute its representative to collect money and deposit the amount to the current account of the Complainant. Accordingly, the Opposite Party No.2 deputed Mr. Keshav Fakire, the Office Boy to Mr. Satyapriya Arya’s house to collect the cash. Mr. Arya handed over one bundle of Rs.500/- notes to Keshav Fakire stating that the total amount in the bundle was Rs.1,50,000/- and accordingly, Mr. Fakire, Office Boy of the Opposite Party No.2 believing the statement of Mr. Arya was true and correct filled the pay-in-slip for Rs.1,50,000/- and handed over the counter foil by affixing the bank seal as an acknowledgment. It is contended that upon reaching Mr. Fakire to the Opposite Party No.2, he handed over cash to the Cashier Ms. Harsha Mali and when she counted the cash. It is submitted that there was in fact a total amount of Rs.1,60,000/- was found in the said bundle as against the amount of Rs.1,50,000/- as told by Mr. Arya to Mr. Fakire in the bundle of Rs.500/- notes. It is alleged that however, there was one mutilated note of Rs.500/- in that bundle and therefore, Ms. Harsha Mali, the Cashier immediately informed Mr. Partho Pratim, the Relationship Manager who was handling the current account of the Complainant Company. The said Relationship Manager in turn informed Mr. Arya about the discrepancy in the total amount and also about mutilated note and told that he shall handover the said note to Mr. Arya. Thereafter, Mr Partho pratim filed another pay-in-slip for Rs.1,59,500/- and sent the said counter foil duly acknowledged by the Opposite Party No.2 alongwith mutilated note of Rs.500/- to Mr. Arya through Mr. Fakire. It is the case of the Opposite Parties that however, when the counter foil for Rs.1,59,500/- and mutilated note of Rs.500/- was handed over to Mr. Arya, Mr. Fakire demanded back earlier counter foil for Rs.1,50,000/-. It is submitted that at the time of Mr. Arya told Mr. Fakire that he would destroy the same and believing his words to be true, Mr. Fakire came back to the Opposite Party No.2 and informed the same to Mr. Patho Pratim. According to the Opposite Parties, therefore as regards one transaction dtd.13/08/2010 Mr. Arya was having two counter foils with his custody i.e. one of Rs.1,50,000/- and another for Rs.1,59,500/-. It is contended that by taking advantage of innocence of Mr. Fakire, the Office Boy of the Opposite Party No.2, the Complainant has filed this false and distorted complaint with intention of cheating the Opposite Parties for wrongful gain by causing wrongful loss to the Opposite Parties. It is contended that the Complainant has not approached this Forum with clean hands but with the ulterior motives to make wrongful gain.
9) According to the Opposite Parties, the Opposite Party No.2 regularly issued the statement of account every month showing each and every transactions in the Complainant’s current account. It is alleged that though the alleged transaction had taken place on 13/08/2010, the Complainant had informed about it to the Opposite Party No.2 firstly on 25/08/2011 vide it’s letter dtd.20/08/2011 i.e. after one year of the said transaction, which clearly undertakes the ulterior motive of the Complainant.
10) It is the case of the Opposite Parties that despite giving the bank statement to the Complainant on each and every month, the Complainant could not notice the alleged transaction for a period of 12 months, if considered it can be inferred that the Complainant has come out with concocted storey. It is submitted that on the very next day of deposing Rs.1,59,500/- one cheque bearing no.373309 for Rs.1,01,550/- was returned unpaid due to unavailability of sufficient fund. It is submitted that, if the statement in the complaint of the Complainant is considered to be true the fact that the Complainant ought to have questioned the Opposite Party No.2 that despite of having deposited total amount of Rs.3,09,500/- how and why the said cheque had been bounced/dishonoured for want of sufficient fund balance ? It is contended that in the complaint filed by the Complainant that Malabar Hill Police Station the police had recorded the statement of office boy Mr. Fakire. The copy of said statement is marked as Exh.‘A’ to the written statement. It is contended that in the statement of Fakire he had given all the details of the whole transaction took place on 13/08/2010. It is thus, contended that had there been any truth in the statement of the Complainant, the Police ought to have acted and taken action against Mr. Fakire as well as the Opposite Parties. It is thus, submitted that there is no truth sought in the case made out by the Complainant and the complaint is liable to be dismissed with cost. The Opposite Parties have denied all the parawise allegations made in the compliant. It is contended that the Complainant is not entitle to any reliefs sought in the complaint. It is submitted as per the various decisions of the National Commission that whenever there is any fraud the Consumer Forum should not entertain such complaints and on that count the present complaint is liable to be dismissed with cost.
11) The Complainant has filed affidavit of evidence of Satyapriya Arya, Director of the Complainant Company and the Opposite Party has filed affidavit of Ashfaq Menon. Both the parties have filed their written arguments. We heard the oral argument of the Complainant’s Advocate Shri. Rajendra Sing and Shri. K.V. Venu, on behalf of K.A. Suryanarayanan, Ld.Advocate for the Opposite Party. We have perused the documents filed on record by both sides.
12) The Advocate for the Complainant relied the pay-in-slips dtd.13/08/2010 filed at Exh.‘C’ of Rs.1,50,000/- and Rs.1,59,500/-. He made submissions that under both the pay-in-slips the Complainant has deposited an amount of Rs.3,09,500/- on 13/08/2010 is proved by the Complainant, however, the Opposite Party has only credited an amount of Rs.1,59,500/- in the current account of the Complainant. The Complainant has brought the said fact to the notice of the Opposite Party by issuing letter dtd.20/08/2011 and by notice dtd.15/10/2011. The Opposite Parties however, did not credit the amount of Rs.1,50,000/- in the Complainant’s account as per the transaction dtd.13/08/2010. This amounts to deficiency in service. He made submissions that the claim made in the complaint is therefore, liable to be granted against the Opposite Party No.2.
13) The Advocate for the Opposite Parties Shri. K.V. Venu, on the other hand submitted that the Complainant by this complaint by taking disadvantage of the two pay-in-slips issued by the Opposite Parties of one and the same transaction of Rs.1,59,500/- and now trying to alleged deficiency on the part of Opposite Parties by showing fraudulent transaction alleged in the complaint. He also made submissions that on 13/08/2010 as per the entries in the Complainant’s account even after depositing Rs.1,59,500/- for want of balance the cheque no.373409 for Rs.1,01,550/- was bounced and the clearing charges of the same of Rs.386.5 were debited to the Complainant’s account on 14/08/2010. He made submission that after the Complainant had deposited total amount of Rs.3,09,500/- ought to have made any complaint to the Opposite Party regarding such bouncing of cheque. He made submission that in view of the statement made by Mr. Fakire before the police, which was recorded prior to filing of this complaint about 7 months and in the said statement he had stated the same facts as contended in the written statement of the Opposite Parties. The case of the Complainant cannot be relied upon. Shri. Venu, Advocate made submission that the Complainant has filed this case of fraud against the Opposite Party and such case cannot be entertained in view of the observations in the following cases –
1) Lala Samachar Newspaper V/s. General Manager, Telecom., Dept 1998 (006) CTJ 336 (NCDRC).
2) N. Shivaji Rao V/s. Daman Motor Company, reported in 1993 (oo1) CTJ-0107-NCDRC.
3) Reliance Industries Ltd. V/s. United India Insurance Co. Ld., 1997 (005) CTJ-688-NCDRC.
He also relied order passed by Central Mumbai and in the case of Thomas Nan V/s. Axix Bank Ltd., passed by Central District Consumer Disputes Redressal Forum, Mumbai, dtd.24/07/2014 and submitted that as this being the case of fraud in view of observations made in the aforesaid cases the present complaint cannot be entertained by this Forum and the same is required to be tried by competent Civil Court. He thus, submitted that the Complainant has come with false and fabricated case. The compliant is therefore, liable to be dismissed with cost.
14) While considering the rival contentions raised by the parties in this complaint it is necessary to be considered whether the claim made in this complaint requires detailed evidence to be led to prove the claim or whether this complaint can be disposed in summary fashion ? Our answer to this point is in the negative. The Hon’ble Uttarakhand State Consumer Disputes Redressal Commission, Deharadun in the recent case of Yogendra Mohan Shukla V/s. State Bank & Anr., reported in I (2015) CPJ 62 (UTTA). Relying upon the decision of the Hon’ble National Commission in the case of Bright Transport Co. V/s. Sangali Sahakari Bank Ltd., II (2012) CPJ 151 (NC) held that –
“It is a settled law that the complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence for consideration, are not to be entertained by the Consumer Fora”
Besides this the Hon’ble Supreme Court in the case between Synco Industries V/s. State Bank of Bikaner & Jaipur & Ors., reported in 2002 (1) SCALE Page 1-3 also held that the order passed by the Hon’ble National Commission dismissing the original petition granting the liberty to Complainant to go (to) the Civil Court or any other Forum if so advised is the just and proper order of the National Commission. The Hon’ble Supreme Court upheld the finding of the National Commission that this is an appropriate claim for a Civil Court to decide and obviously the complaint was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay Court fees. It is also held that this, in that sense, is an abuse of process of the Consumer Forum. Considering the aforesaid legal position and the facts of this case we find that the detailed evidence as regards 2 pay-in-slips which are not signed by the Director of Complainant Satyapria Arya, dishonour of cheque of Rs.1,01,550/- issued by the Complainant bearing No.373309 on the next date of the alleged depositing sums of Rs.1,50,000 + Rs.1,59,500/- as well as, as to how the amount of Rs.3,09,500/- came to the Complainant for depositing the same to the Opposite Parties is also required to be proved by elaborate evidence of the parties. It is also pertinent to note that the Complainant has alleged that he had lodged the complaint before the Malabar Hill Police Station on or about 14/12/2011 but the copy of the said complaint is also not filed before this Forum. The evidence of Keshav Maya Fakire, the Office Boy of the Opposite Party No.2 is required to be tested as provided under Evidence Act in the light of the police statement recorded by Malabar Hill Police in the complaint lodged by the Complainant and other evidence of Partho Pritam, Relationship Manager and the Cashier Harsha Mali being important needs to be recorded to hold whether the Opposite Parties have made fraud against the Complainant about the two transactions alleged to have been committed by the Complainant of Rs.1,50,000/- + Rs.1,59,500/- on 13/08/2010. The Complainant being Private Limited Company it is also necessary to be brought by way of documentary evidence as to how an amount of Rs.3,09,500/- was received by the Complainant and what were the sources for it. In our view therefore, the submissions made by the advocate for the Complainant that on the basis of the two pay-in-slips, the Opposite Parties are liable to pay Rs.1,50,000/- and the other claims made in the complaint cannot be accepted as legal and proper. We therefore, hold that for such scrutiny this Forum has no jurisdiction to entertain the present complaint in summary fashion and the Complainant can seek redressal of his grievance from a competent Court of Civil jurisdiction. In the result the following order is passed –
O R D E R
- Complaint No.178/2012 is dismissed with no order as to cost.
- The Complainant is however, approach the appropriate Forum or Civil Court, if so advised.
- Certified copies of this order be furnished to the parties.
