F I N A L   O R D E R

This is a case U/S 12 of the Consumer Protection Act, 1986 with the prayer for an award directing the O.Ps. to pay sum of Rs.80,900/- illegally withdrawn by en cashing  the cheque No. 944750, dated 09.06.2010, to return back his original two registered sale deeds vide Nos. 6016 for the year 2003 & 5445 for the year 2008 and his KVP certificates vide Nos. 51BC737500 to 51BC737505 amounting to Rs.5,000/- each, 36CD019033 amounting to Rs.10,000/- and 59AB179152 & 59AB179153 amounting to Rs.1,000/- each totaling to Rs.42,000/- and his other documents lying with the O.P. No.1, directing to pay Rs.50,000/- as compensation for mental pain, agony and harassment, to pay Rs.10,000/- as litigation cost and other reliefs.  

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The complainant’s case in short is that the complainant is the holder of two running accounts being Nos. O/D-70 and SB-2386 having cheque facilities, lying with the O.P. No.1. He was in trouble to collect a big amount for the purpose of his business and in the year 2010 a person claiming himself as Palash Roy and representing himself as agent of Axis Bank Limited, assured the complainant that he would take all the responsibilities for sanction of a considerable amount of loan in favour of the complainant and said that for that purpose 1% of the loan amount was required to be paid and asked the complainant to issue a cheque for a sum of Rs.90/- in favour of Axis Bank Ltd. drawn on Bangiya Gramin Vikash Bank to verify the existence of his present bank account. The complainant on good faith issued a cheque vide No.944750, dated 09.06.2010 connected with his account No. O/D-70 for Rs.90/- (ninety only). Subsequently, the complainant obtaining a statement of account from O.P. No.1 came to know that an amount of Rs.80,900/- was withdrawn by using said cheque from his aforesaid account. The complainant never issued any cheque for Rs.80,900/-. Immediately the complainant met with the then Branch Manager of Bangiya Gramin Vikash Bank, Raiganj Branch and enquired the matter and came to know that in said cheque figure “Rs.90/-“ was replaced by the figure “Rs.80,900/-“ and the name of the  ‘Axis Bank’ was replaced by the words ‘Akash Banik’ and the words “Ninety only” was replaced by the words “Eighty Thousand  Nine hundred only”. It is expected that said someone withdrew said amount of Rs.80,900/- in connivance with O.P. No.1 by manipulating said cheque. The complainant never made any overwriting and put his initial signatures or signatures in any corner of the cheque to justify the over writings. The O.P. No.1 should give their attention over such overwriting in the cheque and ought not to have encashed the cheque as, a general man of ordinary prudence should be of suspicious mind about the authenticity of the cheque of such a nature. On previous occasions the complainant issued several cheques out of which some were not encashed only on the ground of overwriting, in the O.P. No.1 Branch. So, the complainant is/was very cautious in the matter of overwriting, in issuing cheques. For the negligence, connivance and also deficiency in service on the part of the O.P. No.1, the complainant suffered a loss of Rs.80,900/-. The complainant requested the then Branch Manager, Bijay Talukdar of O.P. No.1 to take appropriate steps to save him from such loss as there was no fault on the part of the complainant. The then Branch Manager, Bijay Talukdar admitting the grievance of the complainant agreed to compensate the complainant for such loss giving effect to his intention of opening Steel Furniture Manufacturing Unit and by granting a considerable amount of loan. Being assured by Mr. Talukdar, the complainant prepared project report, valuation report and searching report of title of his property and got his name mutated in respect of his property etc. The complainant also deposited said documents along with documents of professional tax, income tax return and original KVP certificates

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as mentioned above. The complainant agreed to create equitable mortgage of his immoveable property purchased by registered deeds as mentioned above and he deposited the such original sale deeds as  security for repayment of the loan amount. But thereafter Mr. Talukdar remained himself silent for a long period and avoided the complainant on various pretext and ultimately he was transferred from the O.P. No.1, Raiganj Branch. Thereafter, the complainant met with the new Manager of O.P. No.1 and disclosed everything before him. But the new Manager refused the complainant stating that he had no knowledge about the matter and he had nothing to do for the complainant. The then Manager, Mr. B. Talukdar without doing anything escaped himself from his liability. Finding no alternative the complainant lodged a complaint before the Police stating the above fact and on the basis of the compliant Raiganj P.S. Case No. 533/11 dated 14.09.2011 U/S 468/471/420/ 409 IPC was started. On 02.08.2011 the complainant sent an application through registered post as per provisions of Right to Information Act, 2005 to get a copy of the cheque encashed and to get information whether any action had been taken by the O.P. No.1 giving effect to the application dated 23.06.2010 and to know the present position of the claim made by the complainant but the O.P. No.1 kept itself silent on such matter. The complainant on 29.08.2011 served a notice through his Ld. Advocate upon the O.P. No.1 asking him to compensate the loss as mentioned and challenging the act of withholding the claim for information. On receipt of said notice, the O.P. No.1 supplied a Xerox copy of the manipulated cheque for Rs.80,900/- which was encashed illegally denying the claim of alteration and manipulation of the cheque and denying to grant any loan in favour of the complainant. Subsequently on 02.08.2011 the complainant submitted further an application before the O.P. No.2 seeking information but the O.P. No.2 kept itself silent. The conduct of the O.Ps. clearly show that they are deliberately trying to withhold the  information related to said cheque. Due to the aforesaid negligence of the O.P. No.1 the complainant suffered a loss of Rs.80,900/- and by the subsequent act of the O.P. No.1, the complainant was forced to incur huge financial expenses and also suffered harassment which could not be compensated by money.

Hence this complaint petition was filed with the prayer as mentioned above.

The O.P. No.2 appeared in this case but he did not contest this case by filing written version and appearing on the date of hearing. Accordingly this case was heard ex-parte against the O.P. No.2.

The O.P. No.1 contested this case by filing written version while stating inter alia that the case is not maintainable, the Forum has no jurisdiction to try this case, the complainant has no cause of action and the case is barred by estoppels, acquiescence and waiver. Admitting the case of the complainant that

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the complainant is the holder of two running accounts vide Nos. O/D – 70 and SB – 2386 having cheque facilities, lying with the O.P. No.1 for a long period. The O.P. No.1 has further stated that the complainant in collusion with one unknown Narash Banik issued the overwritten cheque duly signed by him admitting the overwriting and subsequently for unlawful gain he suppressing such fact, made this false claim against the O.Ps., the complainant have/had no limit to withdraw such type of big amount from his account, with an intention to encash the cheque for Rs.80,900/-, he deposited Rs.1,02,500/- in said account just before the day of withdrawal, there was no deficiency in service or illegality on the part of the O.P. Bank, the complainant has cheated the O.Ps. by way of falsification and personification, the payment on the basis of the cheque for Rs.80,900/- was made in presence of the complainant and as per his instruction, no commitment nor any discussion was made between the Bank Authority and the complainant regarding disbursement of loan to adjust the amount as claimed by the complainant and the O.P. Bank Authority has no liability to pay any compensation or any amount as claimed, to the complainant. It has been further claimed by this O.P. No.1 that the case is liable to be dismissed with cost.

DECISIONS WITH REASONS

It is not disputed that the complainant is the holder of two running accounts vide Nos. O/D - 70 & SB - 2386 having cheque facility lying with O.Ps. and dispute involve in this case is related to the running account No. O/D - 70. So it could be safely said that the complainant is the consumer and the O.Ps. are the service providers.

The complainant has brought a specific case that he was in trouble to collect a big amount for the purpose of his business and in the year 2010 a person claiming himself as Palash Roy and representing himself as agent of Axis Bank Limited, assured the complainant that he would take all the responsibilities for sanction of a considerable amount of loan in favour of the complainant and said that for that purpose 1% of the loan amount was required to be paid and ask the complainant to issue a cheque for a sum of Rs.90/- in favour of Axis Bank Ltd. drawn on Bangiya Gramin Vikash Bank to verify the existence of his present bank account, the complainant on good faith issued a cheque vide No.944750, dated 09.06.2010 connected with his account No. O/D-70 for Rs.90/- (ninety only), subsequently, the complainant obtaining a statement of account from O.P. No.1 came to know that an amount of Rs.80,900/- was withdrawn by using said cheque from his aforesaid account, the complainant never issued any cheque for Rs.80,900/-, immediately the complainant met with the then Branch Manager of Bangiya Gramin Vikash Bank, Raiganj Branch and enquired the matter and came to know that in said cheque figure “Rs.90/-“ was replaced by the figure “Rs.80,900/-“ and the name of the ‘Axis

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Bank’ was replaced by the words ‘Akash Banik’ and the words “Ninety only” was replaced by the words “Eighty Thousand  Nine hundred only”, it is expected that someone withdrew said amount of Rs.80,900/- in connivance with O.P. No.1 by manipulating the said cheque, the complainant never made any overwriting and put his initial signatures or signatures in any corner of the cheque to justify the over writings.

The complainant has further case that The O.P. No.1 should give their attention over such overwriting in the cheque and ought not to have en cashed the cheque, a general man of ordinary prudence should be of suspicious mind about the authenticity of the cheque of such a nature, for the negligence, connivance and also deficiency in service on the part of the O.P. No.1, the complainant suffered a loss of Rs.80,900/- and there was no fault on the part of the complainant.

It has also been stated by the complainant that the then Branch Manager, Bijay Talukdar admitting the grievance of the complainant agreed to compensate the complainant for such loss giving effect to his intention of opening Steel Furniture Manufacturing Unit and by granting a considerable amount of loan.

          The contesting O.P. No.1 by filing W.V. has denied the case of the complainant and has specifically stated that the cheque in question was issued by the complainant for Rs.80,900/- in favour of Narash Banik and such cheque was overwritten by the complainant himself and also he put his signature against the over writings on such cheque. His further case is that in the presence of the complainant such overwritten cheque was encashed.

By adducing evidence the complainant has denied such specific case of the O.P. No.1. The complainant to establish his case has adduced oral and documentary evidences. But from the side of the O.P. No.1 except  production of original overwritten cheque, no evidence has been adduced to establish their specific case and to deny the case of the complainant.

On carefully perusing the written version it appears that the O.P. No.1 instead of specific denial, has made a formal denial of the case of the complainant only. A bunch of documents filed from the side of the complainant, are scrutinized.  From such documents it is clear that immediately after the occurrence the complainant reported the matter to the O.P. No.1 and made a prayer before him to compensate for the loss caused for the fault of the O.P. Branch. From the side of the complainant photocopy of the original cheque for Rs.90/- (ninety only) has been submitted. On the other hand from the side of the O.P. No.1 the alleged manipulated cheque  has been submitted. On scrutiny of such document it appears that the words “AXIS BANK” in favour of which the cheque No.944750 was issued, were manipulated by inserting the words

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“NARASH BANiK” using some of the letters written initially and adding some new letters. It further appears that word “Ninty” was manipulated by replacing the words “Eighty Thousand Nine hundred” in place of words “Ninty Only” using some of the letters initially written and adding other some letters. It further appears that figure ‘Rs.90/-’ was replaced by adding figures ‘80’ before such figure ‘90’ and figure ‘0’ before the sign ‘/-’. In necked eye it is clear that by way of manipulation the original cheque for Rs.90/- was altered with ill intention and the same was encashed. Considering the altered structure of the cheque we are agree with the submission of the Ld. Advocate of the complainant that a general man of ordinary prudence should be of suspicious mind about the authenticity of the altered cheque. The O.P. No.1 has taken a plea that the complainant himself altered the cheque in question by overwriting and he put his signature against such over writings and the cheque was encashed in his presence. The burden of proof to establish this specific case of the O.P. No.1, is strictly lying upon the O.P. No.1 and  the same can be shifted upon the complainant if the O.P. No. 1 is able to do so. To establish this specific case the O.P. No.1 has adduced no evidence. So question of shifting the burden of proof upon the complainant does not arise. The complainant by adducing evidence has denied such specific case. The O.P. No.1 had enough scope to establish such specific case by adducing evidence including the opinion of handwriting expert but the O.P. No.1 has kept himself silent.

It has  already been stated in foregoing lines that the complainant has adduced oral and documentary evidence to establish his case. It is essential to say that the complainant immediately after obtaining the statement of account, made a complaint before the then Manager, Bijoy Talukdar and getting no relief the complainant lodged a complaint before the Police Authorities in writing for the punishment of the offender. Considering the action taken by the complainant we are of the opinion that the complainant took action which he had to take.

The complainant has specifically stated that before the occurrence in question on several occasions he issued cheques and the same were encashed except the cheques which were found overwritten. This statement of the complainant has not been denied by the O.P. No.1. So, it is clear that the O.P. No.1 had/has practice not to encashed the overwritten cheque. The explanation given in  W.V. regarding encashment of the cheque in question is not at all satisfactory. Moreover, on scrutiny of the altered cheque we are of the opinion that due to negligence and collision of the Bank Authority, such cheque was encashed and for the illegal act of the O.P. No.1 the complainant has suffered a loss of heavy amount. It is needless to say that the Bank Authority were under obligation to refuse to encash the cheque but the Bank Authority failed to do so.

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It is essential to mention that in the written version the O.P. No.1 has stated  that for the purpose of encashment of the cheque in question the complainant made a deposit of Rs.1,02,500/- (Rupees one lakh two thousand five hundred ) only just before the day of encashment of the cheque in question. This statement is not at all believable as the cheque was issued on 09.06.2010 and the same was encashed on 10.06.2010 and if the complainant had to pay such amount of Rs.80,900/- to Narash Banik, he obviously paid such amount in cash to him without taking troubles of depositing the cash money and encashing the cheque. In view of our above discussion it is proved that the complainant issued cheque being No.944750 dated 09.06.2010 for Rs. 90/- only in favour of Axis Bank and subsequently the said cheque was altered by someone in the name of one Narash Banik and the same was encashed without the knowledge of the complainant and in collusion with the Bank Authority. It is also proved that for the negligence and deficiency in service on the part of O.Ps. the complainant suffered a loss of huge amount and harassment and he was forced to come before this Forum by spending money.  

The complainant has further case that he being advised by the then Branch Manager, Bijay Talukdar, took several steps to get sanction of a loan of huge amount, he deposited several applications and documents including two registered sale deeds vide Nos. 6016 for the year 2003 & 5445 for the year 2008 and his KVP certificate vide Nos. 51BC737500 to 51BC737505 amounting to Rs.5,000/- each, 36CD019033 amounting to Rs.10,000/- and 59AB179152 & 59AB179153 amounting to Rs.1,000/- each. This averment of the complaint petition has not been specifically denied by the contesting O.P. Moreover, the documents like photocopies of letters dated 11.02.2011 issued by the O.P. No.1 etc. clearly show that the O.P. No.1 acknowledged the receipt of those original documents but till this day no loan has been sanctioned in favour of the complainant. So, the complainant is entitled to get back those original documents from the O.P. No.1.

For the deficiency in service on the part of the O.Ps., the complainant suffered harassment, mental agony etc. and as such the complainant is entitled to get adequate compensation. This case is pending since the first part of  the 2012. No doubt the complainant had to incur a lot of expenses. So, he is also entitled to get an amount as litigation cost.

In view of the above discussions we are of the opinion that the complainant has been able to prove his case and accordingly the case  succeeds.

Fees paid is correct.  

Hence, it is

ORDERED,

that the complaint case No. CC-05/2012 is allowed on contest against the O.P. No.1 and ex-parte against the rest without cost, the complainant do get an award directing the O.Ps. to pay Rs.80,900/- (Rupees eighty thousand nine hundred) only as an amount withdrawn en cashing the altered cheque being No.944750 dated 09.06.2010,  Rs.50,000/- (Rupees fifty thousand) only as compensation for the complainant’s mental pain, agony and harassment and Rs.10,000/- (Rupees ten thousand) only as litigation cost and directing the O.Ps. to return back the original documents like two registered sale deeds vide Nos. 6016 for 2003 & 5445 for 2008 and KVP certificates vide Nos. 51BC737500 to 51BC737505 amounting to Rs.5,000/- each, 36CD019033 amounting to Rs.10,000/- and 59AB179152 & 59AB179153 amounting to Rs.1,000/- each to the complainant within one month from this day failing which the awarded total amount of Rs.1,40,900/- (Rupees one lakh forty thousand nine hundred) only will carry interest @ 9% p.a. from the date of filing of this complaint till the date of full realization and the complainant will be at liberty to put this award in execution in accordance with law against the O.Ps. jointly and individually.  

Let a  true copy of this order be supplied to the complainant and  the O.P. No. 1 each and a true copy of this order be sent to the O.P. No. 2 through registered post with acknowledgement due free of cost.