Advocate Bhushan M. Shalukar for the complainant
Advocate Ravi R. Raje for the Respondents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 12th March 2013
This complaint is filed by a Partnership Firm which is dealing in manufacturing and selling of Automobile Parts. Brief facts are as follows-
[1] The Respondent No.1 is a Nationalize Bank and the Respondent No.2 is its Head Office. The complainant has Current Account in the branch of Bank of Maharashtra i.e. the Respondent No. 1 at Chinchwad since 1982 The complainant used to pay Excise through Bank of Maharashtra as the said facility is provided by the Bank. He paid the said tax by issuing cross cheques in the name of Central Excise Department during the period of 5/5/2009 to 5/11/2009. In all he had issued six cheques worth Rs.5,08,500/-. It was expected by the complainant the Respondent Bank will credit the said amount in the account of Central Excise. These cheques were drawn in the name of Bank of Maharashtra Central Excise. But the Respondent No. 1 has encashed those cheques instead of depositing the said cheques in the account of Central Excise. When the complainant has received notice he came to know about the said misappropriation. Complainant had also issued four cheques during the period of 7/7/2009 to 8/9/2009 in the name of Central Excise. Those amounts are also not credited in the said account. On 12/8/2009, 12/09/2009 and 6/10/2009 the complainant had issued three cheques in the names of Automatic Products and Jyoti Industries worth Rs. 1,92,247/-. Those cheques were cross cheques. Instead of depositing the said cheques in those accounts the Respondent No. 1 had falsely made endorsement on the said cheques ‘crossing cancelled please pay cash’ by making forged signature. The Respondent was negligent in verifying the true signatures on the basis of specimen signature. Thus there is gross deficiency in service of Respondents hence complainant has claimed Rs. 12,76,957/- i.e. the amount which is misappropriated, compensation on the ground of mental and physical torture and damages.
[2] The Respondents have resisted the claim by filing written version. They have denied the contents of complaint in toto. It is specifically denied that the complainant is a consumer as defined u/s 2(d) of the Consumer Protection Act, 1986. It is further contended that the complainant has opened current account for commercial purpose which is excluded from the definition of consumer. It is further contended that the Respondents have not charged any amount for collection of central excise hence service rendered by the Respondents does not fall within the definition of service as defined u/s 2(o) of the Consumer Protection Act, 1986. It is further contended that as the cheques were bearer and some of the cheques having endorsement of cancellation of crossing those were encashed. Accoridng to the Respondents it is the practice of the complainant to take cash amount from the Bank and then to credit the same in the account of central excise. It is also contended that all the amounts were withdrawn by the employee of the complainant named as Rajashree Veer. The complainant himself was negligent. The police complaint is filed against the said employee and this false complaint is filed against the Bank only with ulterior motive. The Respondents have prayed for dismissal of the complaint.
[3] After considering the pleadings, affidavits, documentary evidence and hearing of the arguments of both counsels following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the complainant is consumer in view of definition of ‘consumer’ u/s 2(1)(d) of the Consumer Protection Act ? | In the Negative |
2 | Whether the present complaint is maintainable in this Forum ? | In the Negative |
3 | What order ? | Complaint is dismissed |
REASONS :-
It reveals from the voluminous record on which the complainant has placed reliance upon that the complainant had issued the cheques in the name of Bank of Maharashtra Central Excise as well as in the name of Jyoti Industries and Automatic Products. But it reveals from the same that some of the cheques the endorsement is made that ‘crossing is cancelled please pay the cash’. It is significant to note that as per the provisions of Negotiable Instrument Act Bank need not verify the name of drawee which is mentioned on the cheque if the said cheque is bearer and the bearer is entitled to receive the cash amount. If there is endorsement of cancellation of crossing under the signature of authority then the Bank can pass the said cheque. It appears from the record that the complainant has lodged F.I.R. against its employee as well as some Bank Official. Charge-sheet is also filed against them after investigating the crime. It reveals from the record that the complainant company is dealing in manufacturing and selling of spare parts of automobile as the company is paying central excise. It should be presumed that it has turn over of more than Rs.1,50,00,000/-. In such circumstances it cannot be said that the company is a ‘consumer’ as contemplated u/s 2((1)(d) of the Consumer Protection Act, 1986. As per the definition of ‘consumer’-
“ (d) “consumer” means any person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other then the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]”
It reveals from the pleadings as well as evidence that the Company is doing its business for getting profit and the company is not formed for the livelihood of the complainant and its office bearers. In such circumstances this Forum has no jurisdiction to adjudicate the dispute between the parties under the Consumer Protection Act, 1986.
It appears from the allegations made in the complaint that the complainant is intending to recover the amount which is misappropriated by its own employee as well as bank official from the Respondent Bank. This is purely a civil right and only Civil Court has jurisdiction to adjudicate the dispute between the parties.
I answer points accordingly and pass the following order –
:- ORDER :-
1. The complaint is dismissed.
2. As per peculiar circumstances there is no order as to costs.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 12/03/2013
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