Chandigarh

StateCommission

A/107/2015

Head Office, The Haryana State Co operative Apex Bank Ltd. - Complainant(s)

Versus

B.R.Azad - Opp.Party(s)

Kapil Kumar Bhardwaj, Adv.

30 Jun 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	107 of 2015
Date of Institution	18.05.2015
Date of Decision	30.06.2015

 

1.        Head Office, The Haryana State Co-operative Apex Bank Ltd., SCO Nos. 78-80, Bank Square, Sector 17-B, Chandigarh, through its Managing Director/Chief General Manager.

 

2.        The Haryana State Co-operative Apex Bank Ltd., Sector 32, Chandigarh, through its Branch Manager.

 

3.        The Haryana State Co-operative Apex Bank Ltd., Bank Square, Sector 17-B, Chandigarh, through its Branch Manager.

                                        …..Appellants/Opposite Parties.

                                Versus

B.R.Azad, son of Late Shri Prem Chand, resident of House No.1220, Sector 34-C, Chandigarh.

                                        …..Respondent/Complainant.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by:

Sh.Kapil Kumar Bhardwaj, Advocate for the appellants.

Sh.R.D.Vinayak, Advocate for the respondent.  

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 20.03.2015, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed consumer complaint bearing No.538 of 2014, filed by the complainant, with the following directions:-

“15]      In the light of above observations, we are of the concerted view that the Opposite Parties are found to be deficient in rendering proper service to the complainant. Hence, the present complaint of the Complainant is allowed qua OPs jointly & severally. The Opposite Parties are directed as below:-

 

[a] To pay interest at the savings bank rate on the amount of Rs.4,80,090/- since the respective dates of two debits entries till the date the said amount is recovered;

 

[b] To pay Rs.15,000/-on account of deficiency in service and causing mental and harassment to the Complainant; 

 

[c] To pay Rs.10,000/- as cost of litigation;

 

         The above said order shall be complied within 45 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @18% per annum on the amount mentioned in per sub-para [a] & [b] of para 15 above, apart from cost of litigation of Rs.10,000/-, from the date of institution of this complaint, till it is paid. “

 2.             The facts, in brief, are that the complainant was holding savings account No.000734001000779 with Opposite Party No.2 and it was being operated jointly by him and his daughter Nirmal Kanta. Copy of the passbook is Annexure C-1. It was stated that on 15.04.2014, the said account had a balance of Rs.4,87,920.91, but on 14.05.2014 when the complainant went to Opposite Party No.2 Bank and presented cheque No.002926 for Rs.20,000/-, he was shocked to know that the balance in his account was not enough to negotiate the cheque and on further enquiry, he was informed that the balance in the account was a mere Rs.7,830.91, as two cheques No.2923 & 2925 for Rs.4,10,090/- and Rs.70,000/- respectively had been presented to the Bank through Opposite Party No.3 and the amount was transferred to SB Account No.000234001100125 of Opposite Party No.3 by one Sahil Sharma on 23.04.2014 and 13.05.2014 respectively (Annexure C-2 & C-3).  It was further stated that the matter was reported to the Bank Manager as well as to the Police (Annexures C-4 & C-5). It was further stated that since the huge amount was missing from the account of the complainant mysteriously, he kept on probing the issue, by running from pillar to post and discovered that one Sahil Sharma s/o Sh.Ashok Sharma had opened an account with Opposite Party No.3 on 23.04.2014 with a deposit of Rs.1000/- only, and in the column of introducer, the particulars of the complainant were entered and his signatures were forged. It was further stated that Mr.Sahil Sharma also filed a KYC (Know Your Customer) Certificate, in which, most of the columns were left blank. It was further stated that on the very day of opening the account, an amount of Rs.4,10,090/- was deposited in the same through a forged cheque No.002923, dated 22.04.2014.  The said cheque bears the signature of Sahil Sharma on the reverse (Annexure C-9).  It was further stated that again an amount of Rs.70,000/- was deposited against cheque No.002925, dated 12.05.2014, on 13.05.2014 (Annexure C-3) and the said amount was also withdrawn on the same day. 

3.             It was further stated that neither the Opposite Parties nor the Police had taken any action in the matter.  It was further stated that the Bank blamed the complainant for the fraudulent withdrawal from his account, on the ground, that if the cheques were lost and misused by any person, it was the responsibility of the customer/account holder.  It was further stated that the Opposite Parties were deficient, in rendering service, as also indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

4.             In their written statement, the Opposite Parties, stated that it was clearly made out from the perusal of the complaint and the averments made therein, that it was a case of fraud, forgery, cheating and theft, which was not triable by the Forum and hence, liable to be relegated to the Civil Court.  It was admitted that the complainant was having Saving Bank account with Opposite Party No.2 Bank. Withdrawal of the amount from his account against two alleged cheques was also admitted.  It was also admitted that the complainant wrote a letter to the Manager of Opposite Party No.2 informing him with regard to the fraudulent transfer of the amount of Rs.4,00,000/- and Rs.70,000/- through cheque Nos.2923 & 2925 respectively by one Mr.Sharma in his own account.  It was further stated that on 23.04.2010 Sh.Sahil Sharma s/o Sh.Ashok Sharma r/o #1120, Sector 70, Mohali had opened a savings bank account, with a deposit of Rs.1000/- and submitted his Adhaar card and Voters ID Card, as proof of his residence and identity, as per the norms.  It was further stated that the complainant had himself introduced Mr.Sahil Sharma, while opening the savings bank account, and now he (complainant) tried to play fraud with the Opposite Parties, by alleging that his signatures were forged. It was further stated that KYC form was duly completed in the presence of the complainant and the relevant columns, which were necessary, were completed by Mr.Sahil Sharma. It was further stated that cheque Nos.2923 dated 22.04.2014 for Rs.4,10,090/- and 2925 dated 12.05.2014 for Rs.70,000/- were account payee cheques, and credited to the account of Sh.Sahil Sharma.  The said cheques did not bear the signatures of Sh.Sahil Sharma on the reverse.  It was further stated that the complainant instead of initiating criminal proceedings against the person, who forged his signatures and mis-appropriated his amount, as alleged, instead was interested in getting reimbursement/compensation for the said forgery, allegedly committed by someone.  It was further stated that the act and conduct of the complainant in this regard was sufficient to establish that he himself was hand in glove with one Sahil Sharma, who had allegedly misappropriated the blank cheques of the complainant.  It was further stated that the complainant had no plausible explanation in respect of keeping blank cheques with him duly signed.  It was further stated that the Bank could not be blamed for the negligence, on the part of the account holder, who was duty bound to take care of his important documents, and valuables.  It was further stated that the replying Opposite Parties were neither deficient, in rendering service, nor indulged into unfair trade practice.

5.             The complainant, filed replication, to the reply of the Opposite Parties, wherein he reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of the Opposite Parties. 

6.             The parties led evidence, in support of their case.

7.             After hearing the Counsel for the parties,  and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above. 

8.             Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.

9.             We have heard the Counsel for the appellants/Opposite Parties, Counsel for the respondent/complainant, and have gone through the evidence and record of the case, carefully. 

10.            The Counsel for the appellants/Opposite Parties, submitted that the District Forum while passing the impugned order did not consider that introduction to the account of Mr.Sahil Sharma was of the respondent/complainant and this also proved link between them. He further submitted that Mr.Sahil Sharma transferred the amount to his account from the account of the complainant on 23.04.2014. He further submitted that the complaint dated 24.06.2014 given by the complainant in the office of Senior Superintendent of Police, Sector 9, Chandigarh of fraud, forgery, cheating and theft wherein he himself stated in para No.4 that his maid Meena had stolen various other documents alongwith cheques bearing No.2923 and 2925 from his possession and handed over the same to Mr.Sahil Sharma, who transferred the amount and withdrew the same after using his own cheques. He further submitted that the said complaint is under consideration and concerned investigating Officer had already taken the required disputed documents from the appellants and they are cooperating in the investigation and, as on date, there is no final outcome.  He further submitted that  District Forum had not considered that the complainant did not follow the important general instructions written on the cheque book that “keep this cheque book in a place of security under lock and key”. The complainant himself was at fault by keeping the signed cheque book in open drawer of his bed. He further submitted that the District Forum did not consider that the appellants adopted right/correct/standard procedures, at the time of opening of account of Mr.Sahil Sharma, as per the instructions/guidelines of Reserve Bank of India, as per Exhibit R-2.   He prayed for allowing the appeal and setting aside the impugned order.

11.            The Counsel for the respondent/complainant, submitted that the complainant was holding the savings bank account No.000734001000779 with Opposite Party No.2, which was operated jointly with his daughter Nirmal Kanta. He further submitted that on 15.04.2014, the said account had a balance of Rs.4,87,920.91, but when the complainant went to Opposite Party No.2 Bank and presented cheque No.002926 for Rs.20,000/- on 14.05.2014, he was informed that the balance in the account was a mere Rs.7,830.91, as the amount of Rs.4,10,090/- and Rs.70,000/- was withdrawn by presenting two cheques bearing Nos.2923 and 2925 on 23.04.2014 and 13.05.2014 by one Mr.Sahil Sharma.  He further submitted that the matter was also reported to the Bank Manager as well as to the Police, but to no avail. He further submitted that at the time of opening the account of Mr.Sahil Sharma, in the column of introducer, the particulars of the complainant were entered by someone and his signatures were forged. He further submitted that most of the columns of KYC form were also left blank. He further submitted that the Bank blamed the complainant for the fraudulent withdrawal from his account on the ground that if the cheques were lost and misused by any person, it was the responsibility of the customer/account holder.  He prayed for dismissal of the appeal, filed by the Opposite Parties.

12.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the parties, and the evidence, on record, we are of the considered opinion, that the appeal is liable to be partly allowed, for the reasons to be recorded, hereinafter.

13.            The main question, that falls for consideration, is, as to whether, the proper procedure was adopted by the Bank, at the time of opening the account of Mr.Sahil Sharma. The answer, to this, is in the negative. Admittedly, the complainant is a holder of Savings Bank account bearing No.000734001000779 with Opposite Party No.2, which was jointly operated with his daughter i.e. Smt.Nirmal Kanta, as is clearly evident    from     Annexure C-1.   The main allegation of the complainant that out of the balance amount of Rs.4,87,920.91, in his account, Rs.4,10,000/- and Rs.70,000/- were withdrawn by one Mr.Sahil Sharma fraudulently in connivance with the Bank officials.   The complainant alleged that the Opposite Parties failed to take necessary pre-cautions and ignored the mandatory provisions at the time of opening the account of Mr.Sahil Sharma. The complainant referred to para No.12 of the complaint, wherein, certain discrepancies, regarding opening of account of Mr.Sahil Sharma were pointed out. Annexure C-6 is a copy of the Account Opening Form of Mr.Sahil Sharma son of Sh.Ashok Sharma, account No.000234001100125 dated 23.04.2014, resident of #1120, Sector 70, Mohali and photograph of Mr.Sahil Sharma was attached on the said form. A bare perusal of the said form shows that PAN number was not given by Mr.Sahil Sharma, at the time of opening of his account and Form No.60 was mentioned but no copy of Form No.60 was attached at the time of opening of the account. Annexure C-8 is copy of KYC (Know you Customer) Certificate. From this document, it is proved that many columns were left blank by the Bank in the said Certificate i.e. column No.5 ‘Educational Qualification, Column No.8 Organisation’s Name, Designation/Profession, as Mr.Sahil Sharma declared occupation as ‘business’ but he neither gave the name of his firm nor its address, column No.10 Existing credit facility, if any, Assets, Nomination Facility and even the column No.9 i.e. ‘Dealing with other Bank’ reveals that the name of Opposite Party No.3 itself was given and no date was mentioned.  It is pertinent to note that Mr.Sahil Sharma at the time of opening his account, given copies of Voter’s Card and Adhaar Card (page No.32 and 33 of the District Forum file) but the photograph of Mr.Sahil Sharma attached on the Account Opening Form did not tally with the photographs attached on Voter Card and Adhaar Card.

14.           It is clear from the documents on record that Mr.Sahil Sharma opened his account with a deposit of Rs.1000/- only and on the very day of opening the account, an amount of Rs.4,10,090/- was deposited in the account through a forged cheque No.002923 dated 22.04.2014 and out of the balance of Rs.4,11,090/- an amount of Rs.4,05,000/- was paid to Mr.Sahil Sharma, in cash, against a self cheque No.015291 dated 23.04.2014 (Annexure C-10). On the very next day i.e. 24.04.2014 another Rs.5,000/- was paid to one Avtar Singh, in cash, on 30.04.2014 against cheque No.015294 (Annexure C-11). Thereafter, again an amount of Rs.70,000/- was deposited in the account of Mr.Sahil Sharma against cheque No.002925 dated 12.05.2014 and the said amount was withdrawn on the same day against two self cheques No.015295 and 015296 for Rs.55,000/- and Rs.15,000/- respectively (Annexure C-13 and C-14). Copy of statement of account of Mr.Sahil Sharma is attached as Annexure C-15.

15.            The averment of the appellants/Opposite Parties that the complainant put his introduction while opening the account Mr.Sahil Sharma proves that there was relation/nexus between the complainant and Mr.Sahil Sharma. This allegation was denied by the complainant, stating that he never signed the introduction column in the account opening form and his signatures might have been forged by Mr.Sahil Sharma/somebody else in connivance with some officials of the Opposite Parties. Annexure C-17 is a letter dated 24.06.2014, wherein, the complainant requested for registration of FIR. Evidently, from Annexure C-17 it borne out that on 23.04.2014 Mr.Sahil Sharma filled the application form for opening the account, which was received by the official of the Bank Sh.Kanwar Singh More, Junior Accountant, who then checked and verified the contents of the Account Opening Form and subsequent Sh.Narain Singh, Astt. Manager allowed the same under their respective signatures. It is pertinent to note that the name and signatures of the identifier was of the complainant on the said account opening form, even without the presence of the applicant in person before the official of the Bank, which was necessary. It was the duty of the Bank official to contact the introducer at the time of opening the account but the said Bank never tried to contact the complainant, at the time of opening the account of Mr.Sahil Sharma. Even the signature of Mr.B.R.Azad in the column ‘Signature of Introducer’ in the account opening form did not match with the signature at Annexure C-2 of the complainant. The appellants/Bank failed to produce,  on record, any evidence to prove that on the date of opening the account of Mr.Sahil Sharma, Mr.B.R.Azad appeared and signed as introducer, in front of the official of the Bank.   

16.            The next contention of the appellants/Opposite Parties is that the complainant did not follow the instructions printed on the cheque book (Exhibit R-1) vis “Keep this Cheque book in a place of security under lock and key” and he himself by keeping the signed cheque book in open drawer of his bed was negligent in keeping safe custody of the same. On the other hand, the complainant stated that he kept the cheque book in safe custody in a drawer of his bedroom, which remained locked. Moreover, the complainant also had intimated the factum of theft of cheques to the Bank on 14.05.2014 (Annexure C-4). In our opinion, the Bank cannot absolve its responsibility completely just by citing the safe custody instruction printed on the cheque book. No doubt, the blank signed cheques were kept in safe custody. However, the huge amount was withdrawn from the account of the complainant by forging cheques. To our understanding, the complainant by keeping the said cheques in safe custody, showed due diligence and an act of caution on his part.  As such, it cannot be said that he (complainant) did not take due care and caution in keeping in safe custody of the cheques and no negligence or carelessness is attributable to him on this count.

17.            Now, it is proved from the record that the Appellant Bank was at fault in opening the account of Mr.Sahil Sharma, as most of the columns in KYC form were left blank and the withdrawal of hard earned money of the complainant from his account, for which, the District Forum rightly ordered to pay an amount of Rs.15,000/- on account of deficiency in service and causing mental harassment to the complainant and also the litigation cost to the tune of Rs.10,000/-.  Even the complainant played his role well because when he came to know about the withdrawal of the amount from his account, he immediately complained to the Bank as also to the Police and still the investigation is pending before the Police and, as such, the said issue needs to be resolved there. So, we are of the considered opinion that the District Forum erred in granting the interest at the savings bank rate on the amount of Rs.4,80,090/- since the respective dates of two debit entries till the date of recovery of said amounts. As such, the Clause No.[a] of para No.15 of the impugned order is liable to be set aside.

18.            In view of the above discussion, the appeal filed by appellants/Opposite Parties, is partly accepted, with no order as to cost, the order of the District Forum is modified in the following manner, and the Opposite Parties (now appellants) are directed as under:-

[i]             Direction given by the District Forum in para No.15 Clause [a] is set aside.

[ii]            To pay Rs.15,000/- on account of deficiency in service and causing mental harassment to the complainant, as awarded by the District Forum.

[iii]           To pay Rs.10,000/- as cost of litigation, as awarded by the District Forum.

[iv]           This order be complied with, by the Opposite Parties (now appellants) within 45 days, from the date of receipt of its certified copy, failing which, they shall be liable to refund the amount of Rs.15000/-, as awarded by the District Forum, to the respondent/complainant alongwith interest @18% p.a. from the date of institution of the complaint, before the District Forum, till its realization, besides costs of litigation.

19.            Certified Copies of this order be sent to the parties, free of charge.

20.            The file be consigned to Record Room, after completion.

Pronounced.

30.06.2015                                                                 Sd/- 

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

Sd/-

 (DEV RAJ)

MEMBER

 

Sd/-

(PADMA PANDEY)

        MEMBER