JUSTICE J. M. MALIK, PRESIDING MEMBER(ORAL) 1. Learned counsel for the petitioner and learned counsel for the respondent No. 1 present. None appears for respondents 2 and 3. Arguments heard. 2. Chandrashekhar Mor had received a cheque in the sum of Rs.38,694.32 from HPCL, opposite party No. 5, which was drawn on Bank of India, opposite party No. 1. The complainant/petitioner could not get the said cheque. The said cheque was misplaced. The complainant made an enquiry from HPCL, opposite party No. 5 by certain letters and thereafter on 15.9.1993, he came to know that somebody had encashed the said cheque through opposite party No. 2/Bank of Maharashtra, Branch Kamthee by opening account in the name of C. B. Mor (the second person with the same name). The complainant sent a notice to Bank of Maharashtra and claimed the amount of cheque with interest but the notice has not been placed on record. -3- 3. Thereafter, he filed a complaint against all the five opposite parties before the District Forum. The District Forum allowed the complaint and passed the following order: “1. The complaint of the Applicant is allowed against Respondent No. 2 Bank of Maharashtra through Branch Manager, Kamthi Branch, Kamthi, Taluka District Nagpur. 2. The respondent Nos. 1,3,4 and 5 are discharged in this matter. 3. The respondent No. 2 is directed to pay an amount of Rs.38,694.32 (Rupees Thirty Eight Thousand Six Hundred Ninety Four and Paise Thirty Two Only) to the Applicant along with interest thereon @12% per annum with effect from 9th December 1992. 4. The Respondent No. 2 is also directed to pay Rs.2,000/- (Rupees Two Thousand Only) towards costs of the complaint and Rs.2,000/- (Rupees Two Thousand Only) towards other expenses and mental torture to the applicant. 5. This order be implemented and acted upon within 30 days from the date of this order, failing which the applicant will be entitled to recover the entire amount along with interest @18% per annum.” -4- 4. Being aggrieved, an appeal was filed by the Bank of Maharashtra before the State Commission. The State Commission allowed the appeal on the ground that the complainant has got no privity of contract with the Bank of Maharasthra. It was held that the complainant did not take any action which creates an iota of doubt over his contention. 5. We have heard learned counsel for both the parties. Learned counsel for the complainant reiterated the argument that there is no privity of contract about the above said incident between the opposite party No. 2 and the complainant. He further submits that the opposite party was never intimated about this fact. No legal notice was sent to it. 6. Although, there is a dispute whether the notice was sent to Bank of Maharashtra-opposite party No. 2 or not, yet, it is clear that filing of the complaint with the District Forum gave sufficient notice to Bank-opposite party No. 2. The opposite party No. 2 did not swing into action even after the fact that the complaint was filed against it as well. Learned counsel for the opposite party No. 2 submits that they can swing into action only if the police case is filed. The record reveals that the police complaint was filed. The District Forum in its order clearly, specifically and unequivocally mentions that ‘upon making detailed enquiry, the -5- Applicant learnt that on 28th March, 1993, the Hindustan Petroleum Corporation Limited had lodged a complaint dated 26th March, 1993 with the Kamthi Police Station. On the said complaint, Kamthi Police Station has registered an offence.’ 7. It is surprising to note that this fact came to the notice of the bank-opposite party No. 2. The Bank employee was interrogated. It handled the situation in a maladroit way. They are interested in defending their client, Shri C.B. Mor, who had apparently committed cheating on the complainant. The bank is terribly remiss in discharge of their duties. Their duty is to winnow the truth from falsehood. They should have called Shri C. B. Mor and made an enquiry. He should have been asked why did he encash the amount when it was not actually in his name. His signatures were not verified. The cheque itself creates the relationship of consumer and the service provider between the complainant and the Bank, OP No. 2. The bank cannot go away with the fact that he is not a consumer. Since opposite party No. 2 is dealing with the cheque of the complainant, therefore, the complainant is a consumer. Their duty is to call Shri C. B. Mor and enquire why he has taken the money, which does not belong to him. Learned counsel for the opposite party No. 2 -6- has argued that unless or until the police take any action, they cannot take any action. This shows mala fide intention on the part of the bank. The OP 2 cannot wash his hands of the responsibility. The bank had no time to search, hunt and ferret. It cannot throw up his hands in despair to ferret out the truth. How the second C.B. Mor is entitled to the cheque issued in the name of first C.B.Mor. OP No. 5 supports the case of the complainant. Second C.B. Mor will establish his relationship with the OP No. 5. The Bank cannot be allowed to work in cahoots with the second C.B. Mor to cheat the complainant. Consequently, we hereby accept the revision petition, set aside the order passed by the State Commission and restore the order passed by the District Forum. The opposite party No. 2 will have the liberty to recover the amount from Shri C. B. Mor as per law. | 
