07.04.2016.
PER SAMARESH PRASAD CHOWDHURY, PRESIDING MEMBER.
Challenge in this appeal under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as “the Act”) is at the instance of O.P. No. 1 to impeach the judgment dated 23rd December, 2014 pronounced by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit - II (for short, Ld. District Forum) in Consumer Complaint No. 114 of 2013 whereby the complaint initiated by the Respondent No. 1 under Section 12 of the Act was allowed on contest with cost of Rs.10,000/- with a direction upon the O.P. to refund the entire amount of Rs.2,65,400/- together with interest thereon @ 8% per annum from 26.02.2013 till realization, to pay compensation of Rs.25,000/- and Rs.30,000/- as personal damages.
The Respondent No. 1 herein being the Complainant initiated the complaint stating that he is holder of one current A/c bearing No. 02192000030879 at O.P’s bank. It is alleged that few unspecified officials of O.P. No. 1 – bank contacted with the Complainant over telephone and offered credit card facility. Accordingly, the Complainant handed over two passport size photographs, one cancelled cheque duly signed, Photostat copy of PAN Card for the purpose of opening of credit card facility. Those personnels of O.P. No. 1 collected the cancelled cheque directly from the Complainant on 25.02.2013. However, the Complainant noticed from the statement of account of the month of March, 2013 that a sum of Rs.2,65,400/- has been withdrawn in cash by one Sunil Shaw i.e. (O.P. No. 2) from the O.P. No. 1 – bank. The Complainant had alleged that the bank personnel are involved in the said withdrawal of the cheque and the negligence and deficiency in services on the part of the O.P. No. 1 is palpably clear. Hence, the complaint with a prayer for direction upon the O.P. to credit the sum of Rs.2,65,400/- to the current account of him, a compensation of Rs.1,35,000/-, cost etc.
The O.P. No. 1 i.e. the HDFC Bank by filing a written version disputed the allegations levelled by the Complainant stating that the Complainant opened the account for the purpose of business in order to cater the need of several persons who are working and employed under him and as such, the Complainant is not a consumer under the purview of the Act. the O.P. alleged that the Complainant is a commercial organization and the account holder is not running business for his livelihood rather indulgence in commercial dealing in large scale. The O.P. No. 1 has categorically stated that the alleged cheque for a sum of Rs.2,65,400/- was presented on 25.02.2013 before the bank and after verifying the identity of O.P. No. 2, the same was paid. It has further been stated that the said cheque was a bearer cheque standing in the name of O.P. No. 2 and after ascertaining the identity of the said person the amount was released. Therefore, according to the O.P. No. 1 the complaint should be dismissed.
After assessing the materials on record, the Ld. District Forum by the impugned order allowed the consumer complaint with certain directions as indicated above, which prompted the O.P. No. 1 – bank to prefer this appeal.
We have scrutinized the materials on record and considered the submissions advanced by the Ld. Advocate for the Appellant. It may be pertinent to record here that the Respondent did not take any step whatsoever at the time of hearing and as such the appeal was heard in absence of the Respondents.
Be that as it may, on perusal of the materials on record and having heard the Ld. Advocate appearing for the Appellant and on having a look to the Brief Notes of Argument submitted on behalf of the Appellant it emerges that the Respondent No. 1 herein opened a Current A/c with the Appellant – bank, Burrabazar branch being A/c No. 02192000030879. It also remain undisputed that on 26.02.2013 a sum of Rs.2,65,400/- has been withdrawn from the account of the Respondent No. 1 by Respondent No. 2, Sri Sunil Shaw. It is alleged by the Respondent No. 1 that cancelled cheque issued by him to facilitate for opening of current account was converted into a bearer cheque by the Respondent No. 2 in collusion with the bank officials and managed to get it encashed.
The Ld. District Forum in order to ascertain the allegation levelled by the Respondent No. 1 as to such fraud practiced upon him called for Case Diary in connection with Posta P.S. Case No. 152 dated 06.04.2013 under Sections 420/467/468/471/120B of IPC. From the said record, the Ld. District Forum could gather that in course of investigation police sent the questioned cheque to the Director of Question Department Examination Bureau, CID, West Bengal. In the said report the examiner has mentioned that the word “cancelled” in the cheque in question was erased. Basing upon the said report of Questioned Document Examination Bureau, the Ld. District Forum has arrived at a decision that the original cheque was tampered with in order to facilitate the Respondent No. 2 to encash the cheque in question in collusion with the bank officials.
Mr. Satyakam Chakraborty, Ld. Advocate for the Appellant has submitted that the judgment is perverse because the Ld. District Forum did not afford any opportunity to them to cross-examine the expert in order to ascertain the actual state of affairs. He has further submitted that the question of fraud cannot be adjudicated by a consumer fora, more particularly with a criminal case has already been registered and investigation is yet to be completed. To fortify his contention, Ld. Advocate for the Appellant has placed reliance to paragraph 18 of decision of the Hon’ble Supreme Court of India reported in 1999 (8) Supreme 401 [State of Himachal Pradesh – vs. – Jai Lal & Ors.]. In paragraph 18 of the said decision the Hon’ble Apex Court has observed “an expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions”. The Ld. Advocate for the Appellant has placed another decision of Hon’ble National Commission reported in II (1992) CPJ 487 (NC) [Panalal – vs. – Bank of India & Ors.] In the said decision a question arose whether the payment made by the O.P. – bank was collusive. It has been held that the question of fraud is not a simple case of deficiency of service. It involves determination of complex question of facts and law which would not be satisfactorily determined by the Commission in the timeframe provided under the Act. It would be better for the Complainant to seek redress of his grievance in Civil Court if so advised. In another decision reported in II (1992) CPJ 551 (NC) [A. Jayachandra Kumar – vs. – Chairman, State Bank of India & Anr.] a question arose as to tampering with account book etc. In the said decision it has been held that the complex issue involved in the complaint cannot be satisfactorily adjudicated in the proceeding under the Act and therefore, the said petition was dismissed with a leave to the Complainant to seek redress in a Civil Court if so chooses and so advised.
Section 45 of the Indian Evidence Act, 1872 which makes opinion of expert admissible lays down that “When the Court has to form an opinion upon a point of foreign law or of science or art, or as to identity of handwriting or finger impressions, the opinions upon that point of persons specially skilled in such foreign law, science or art or in questions as to identity of handwriting or finger impressions are relevant facts”. Therefore, in order to bring the evidence of a witness as that of an expert it has to be shown he is good knowledge of the subject or acquire special experience or in other words skill and technical knowledge of the subject. It is well settled that the reports submitted by an expert does not go to evidence automatically. He has to be examined as a witness in court and has to face cross-examination. The Ld. District Forum did not consider that aspect of the matter and passed the order relying upon the report of a handwriting expert. Even if it is evident after investigating into the matter police has not yet submitted any charge-sheet against the bank officials till now and as such the Ld. District Forum should have no occasion to hold the bank as guilty and directing them to refund the money in favour of the Respondent No. 1.
Another aspect of the matter is very important. The Complainant has lodged the complaint mentioning himself as proprietor of Bipin Kumar Jain. In the petition of complaint the Complainant did not disclose the nature of business of the company and whether the business run by him was meant for his livelihood by way of self-employment. However, in the affidavit, the Complainant has mentioned himself as a businessman being Proprietor of Bipin Kumar Jain. However, the letter given by the Respondent No. 1 to the Branch Manager of the O.P. No. 1dated 26.03.2013 clearly indicates that Complainant is proprietor of Bipin Kumar Jain and the said Bipin Kumar Jain is a manufacturer and supplier of exclusive Bengal Tant Sarees and Textimes and commission agent of Kolkata, Jainpur and Delhi. The facts and circumstances indicated that the Complainant runs a large scale business and as such he cannot be termed as consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986. In M/s. Harsolia Motors - vs. – M/s. National Insurance Company reported in I (2005) CPJ 27 (NC) the National Consumer Commission has held that If the goods are purchased for resale or for commercial purpose then such consumer would be excluded from the coverage of the Consumer Protection Act. Ld. District Forum totally ignored the proposition of law and the observation held by the Hon’ble National Commission.
Therefore, relying upon the materials available with the record we have no hesitation to hold that the Ld. District Forum failed to appreciate that pending criminal proceeding no leave can be granted in case of adjudicating a consumer dispute when substantive issue involved in the subject matter of criminal trial. Moreover, the Complainant sought to use the subject account for commercial purpose and not for his personal use and as such he is excluded from the coverage of the Act. In such a situation, we are constrained to interfere with the impugned order.
For the reasons aforesaid, the appeal is allowed exparte but without any order as to cost.
The judgment dated 23rd December, 2014 passed by the Ld. District Forum is hereby set aside. Consequently, the petition of complaint stands dismissed.
Let a copy of this order be forwarded to the Ld. District Forum, Kolkata, Unit - II for information.
