Chandigarh

DF-II

CC/202/2010

Amarjit Singh Saini - Complainant(s)

Versus

Branch Manager, HDFC Bank, - Opp.Party(s)

Sandeep Bhardwaj,Adv

25 Mar 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Consumer Complaint  No	:	202 of 2010
Date  of  Institution	:	05.04.2010
Date   of   Decision	:	25.03.2015

 

 

 

 

 

Amarjit Singh Saini, through Col. Pritam Singh, R/o Kothi No. 651, Sector 33-B, Chandigarh.

 

             …..Complainant

 

Versus

 

Branch Manager, H.D.F.C. Bank, Sector 35-C, Branch, Chandigarh.

….. Opposite Party

 

BEFORE:  SH.RAJAN DEWAN                 PRESIDENT

         SH.JASWINDER SINGH SIDHU       MEMBER

        

Argued By:  Sh.Sandeep Bhardwaj, Counsel for the complainant.

Sh.Sunil Narang, Counsel for the Opposite Party

 

 

PER JASWINDER SINGH SIDHU , MEMBER

 

         Earlier this complaint stands dismissed vide our order dated 16.11.2012 against which the complainant preferred F.A. No.425/2012 before the Hon'ble State Commission. The Hon'ble State Commission vide its order dated 04.03.2013 accepted the appeal filed by the complainant and  order of this Forum was set aside and the case was remanded back with a direction to decide the same afresh in accordance with law.  The Hon'ble State Commission in para 12 of its order had directed as under:-

“12.  In the present case, the complainant from the very beginning was alleging that  he never signed the cheques in question and the Opposite Party without verifying the signatures endorsed on it  wrongly encahsed the same and hence it was deficient in rendering service.  In support of his assertion, he even placed reliance upon the report of the Central Forensic Science Laboratory procured by him under the RTI Act.   No doubt, the complainant did not place, on record, the original report but, in order to impart justice between the parties, and to know the genuineness and authenticity of the report it was incumbent upon the District Forum, to summon the Govt. Examiner, who had prepared the report. The District Forum by ignoring the provisions of Section 13 of the Consumer Protection Act, 1986, wrongly dismissed the complaint, on the ground, that the said report could not be read into evidence, as it was not proved. The order of the District Forum is, thus, liable to be set aside and it is a fit case, which should be remanded back to the District Forum, for deciding the same, afresh, in accordance with law”.

 

2]       In pursuance of the order of the Hon'ble State Commission, Govt. Examiner namely Ramesh Chandra, Asst. Govt. Examiner, CFSL who had prepared the report had been summoned alongwith the relevant record/papers pertaining to the report dated 05.12.2011 and his statement dated 04.04.2014 has been recorded and the Counsel for the Opposite Parties was also afforded opportunity to cross examine him but he preferred not to put any query or ask any question with regard to the captioned document prepared by him.

 

3]       In brief, the Complainant has filed the present complaint, against the Opposite Party on the ground that the Complainant is a NRI settled in U.S.A.; that while in India, the Complainant opened and operated his NRO A/c No.1314101000052 with the HDFC Bank, Sector 35, Chandigarh. In fact, the Complainant had initially opened an A/c with Centurion Bank of Punjab, which merged with the HDFC Bank. The Complainant was issued a new Cheque Book by HDFC Bank, thus, invalidating the old cheque book of Centurion Bank of Punjab.  

         The Complainant visited India from 4.1.2009 to 7.2.209; copy of the passport along with Visa is attached. The Complainant received a Bank Statement dated 11.6.2009, from Opposite Party, wherein 02 withdrawals of Rs.3.90 lacs and Rs.4.85 lacs were found made from the account of the Complainant on 22nd & 29th May, 2009, respectively, by one Ashok Kumar. The copy of statement of account is annexed at Annexure C-1. The Complainant claims that he neither knew any Ashok Kumar nor had issued any cheque favouring him.  The Complainant with the help of his friend Col. Pritam Singh, procured information, about the two Cheques, through which the above- mentioned withdrawals from his account were made, revealing that both cheques were got encashed from Jakhal Branch of the Opposite Party in June, 2009. These Cheques were actually of Centurion Bank of Punjab, which were earlier invalidated by the Opposite Party, in February, 2009, by issuing afresh Cheque book of HDFC Bank. The Complainant claims that the HDFC Bank Jakhal had sought the Proof of Identity of the person producing the Cheques, a Driving License (Annexure C-2) issued by Motor Vehicle Department, Ludhiana, is found on records. The HDFC Bank Jakhal encashed the both Cheques amounting to Rs.8.75 lacs ignoring the statutory Rules of Bank, which prohibits honouring of 3rd Party Cheques by any other Branch of Bank, except Home Branch i.e. where the Account is originally opened. In case of the Complainant, the Home Branch was Sector 35-C, Chandigarh, and the HDFC Jakhal Branch did not bother to contact or verify the signatures of the Complainant from its Home Branch, but hastily encashed the Cheques, ignoring the fact that the Cheques were from the Cheque Book of Centurion Bank of Punjab, which no more existed.  The Complainant further claims that the Cheques (Annexure C-3 and C-4) purportedly signed by the Complainant twice in front and once on the back; however, the cheque, if issued, in the name of the 3rd Party, then, only one signature is required. Thus, this irregularity should have raised the suspicion, but the dealing bank at Jakhal ignored it. It is also claimed that the Bank failed to find discrepancy between the forged and specimen signatures of the Complainant, though they did not bear any resemblance. The Complainant got the signatures on the alleged Cheques compared with his specimen signatures signed while opening his account with the Bank from Dr. Jassy Anand’s Forensic Consultancy headed by Dr. Jassy Anand and the report by this expert is attached at Annexure C-5 conclusively proves that the Cheques were not signed by the Complainant.  The Complainant further claims that he was defrauded of Rs.8.75 lacs due to the negligence and lack of due diligence on the part of Bank Branch where the Complainant has deposited his money for safe keeping; thus, miserably failing in its responsibility towards the Complainant. The Complainant sent an e-mail from USA to Branch Manager, Sector 35-C, Chandigarh (Annexure C-6), complaining about the illegal withdrawal and received their replies through e-mails, which are at Annexure C-7 and C-8 respectively. The Opposite Party in their reply has put the blame on the Complainant for not informing it about the stolen or lost Cheques. Thus, claiming deficiency in service for having caused loss of Rs.8.75 lacs, the Complainant has prayed for a compensation to the tune of Rs.3.00 lacs as damages on account of having suffered mental agony and mental torture, thus, deteriorating his health, as well as for the expenses for having to visit India for this purpose, Complainant has also sought the refund of Rs.8.75 lacs, along with up-to-date interest thereupon.        

 

4]       Notice of the complaint was sent to Opposite Party seeking their version of the case.

 

5]       The Opposite Party has contested the claim of the complainant by filing their reply, taking preliminary objections to the effect that the matter is already pending with the Economic Offences Wing of Chandigarh Police and is under investigation. As the complicated questions of fact are involved thus the matter cannot be tried by way of summary trial before this Forum and deserves to be dismissed on this score also.  It was denied that on issuance of the new cheque book, the old cheque book is rendered invalid.  It was denied that the complainant had not issued any cheque. The two cheques presented for payment dated 28.05.09 and 21.05.09 were out of the cheque book issued to the complainant and the signatures on the said cheques as per apparent tenor were those of the complainant and therefore, the Bank had allowed the payment of the cheques in question.  It was denied that when the payments against those cheques were allowed, these were invalidated by the HDFC Bank ltd.  It was further stated that at the time of allowing the payment, bank had obtained identity proof of the person taking the payment and photocopy of his D.L. was kept on record. It was further submitted that while making payment at Branch Office Jakhal, the signatures of the complainant were compared and as per the apparent tenor, signatures on the cheques were tallying with the complainant’s specimen signatures available with the Bank. It was further stated that the signatures of the complainant on the cheques in question and those available with the bank as specimen signatures, tally with each other. No forgery could be detected with naked eyes and the Bank has made payment in good faith and without negligence. It was stated that the cheques which have been paid, were not obsolete.  Pleading that there is no deficiency in service on its part, prayer for dismissal of the complaint has been made.

 

6]       Parties led evidence in support of their contentions. The Opposite Party preferred to file its reply as well as the affidavit dated 14.09.2010 in which it had deliberately left some blank spaces. Therefore, as neither the contents nor the meaning of the sentences of the reply & the affidavit are clear.  The OP in order to fill-up this lacuna, again filed a short affidavit dated 2.8.2011.    

 

7]       We have heard the ld.Counsel for the parties and have also perused the record.

 

8]       The complainant is a bonafide customer of the opposite party as his (NRO) account with the opposite party is being maintained by him. The main dispute in the present complaint is with regard to the encashment of two cheques of Rs.3,90,000 and Rs.4,85,000 on 22 MAY and 29 MAY 2009 respectively. The complainant has alleged that he has not issued these cheques to any person and is also not aware as how these cheques had reached the person Ashok Kumar who had produced them for realization.

 

9]       The complainant while disputing his signatures on these cheques has laid the blame at the doorstep of the opposite party claiming that the opposite party has acted in a deficient manner by failing in not differentiating the fake signatures appended on these two cheques from those of his sample signatures in its records. The complainant in order to substantiate his contentions has brought on record the report of a Forensic Expert Dr.Jassy Anand who has opined that the signatures appended on the cheques in question are the result of a copied forgery. The complainant while tendering this document as evidence has only tendered an attested photo copy of this report, which is found attested by an Oath Commissioner. 

10]      In the case in hand, Dr.Jassy Anand, A Forensic Expert has specifically stated that she had examined and compared the disputed signatures marked as Q-1 and Q-2, Q-3, Q-4 and Q-5 and the standard signatures, marked as S-1 and S-2, S-3 to S-7 with the help of photographic enlargements, magnifying lenses and all other necessary instruments. Similarly, the other important piece of evidence, which was on earlier occasion was not taken into consideration for the reason that the author Sh.R.Chandra, Assistant Govt. Examiner, was not called to verify his report and as per the directions of the Hon’ble State Commission, UT, Chandigarh, he was duly summoned by this Forum and on his appearance he had categorically verified the Forensic Report dated 21.02.2011, prepared by him.  In the said report Sh.R.Chandra, Assistant Govt. Examiner has specifically stated in his opinion that he had examined the documents of the case in question in all aspects of handwriting identification and detection of forgery by using various scientific aids available in the Govt. of India laboratory at Chandigarh. In view of the two aforementioned reports, it is established beyond all reasonable doubts that the purported signatures of the complainant found appended on the two cheques in question, are not his original signatures and therefore, some unscrupulous element has copied the same and presented these two cheques for encashment at a far off branch of the OP at Jakhal (Haryana) even though the complainant was maintaining his NRO Account at Sector 35 Branch, Chandigarh of the OP.   

 

11]      Though, Sh.Anil Dhawan, presently posted as Assistant Manager with HDFC Bank Ltd., Mohali has tendered his affidavit dated 13.06.2013 wherein he deposed that he remained posted with Jakhal Branch of HDFC Bank Ltd from Feb. 2009 to 31.01.2010 as PB Authoriser.  He has specifically deposed in his affidavit that the he had personally compared the signatures of the complainant on both the cheques in question with the specimen signatures of the complainant available with the bank on the system and when he was satisfied that the signatures of the complainant on cheques in question match with his specimen signatures available with the bank, that he authorized the payment on the cheques in question. He further deposed in his affidavit that he retained the copy of the D.L. of the person to whom the payment was given against the cheques in question as an identity proof.  He further deposed in his affidavit that after verifying the record to ensure that the cheques were from among the cheque book issued to the complainant and also after verifying his signatures on the said cheques, the payment was made over counter in due course.

 

12]      The contents of the affidavit of Sh.Anil Dhawan, as mentioned above, do not talk about the fact that the cheques in question, which belonged to Centurion Bank of Punjab were actually in circulation at the time of being presented for the reason that the OP had preferred to entertain the same by virtue of some company policy, which has not been elaborated upon by placing on record any office circular from higher authority directing all the branch offices of the OP to do the same. The Opposite Party has placed on record a copy of notice, which is Ann.R-1 declaring that non-HDFC Bank cheques issued after 31^st July 2009 will be dishonoured.  However, this notice does not quote any mention of Officer Circular under which such notice has been published and in what manner this notice was made public.  In the absence of any directions from Higher Authority to continue to entertain the cheque of Centurion Bank of Punjab, the allegation of the complainant that after Feb., 2009, the previous cheques of Centurion Bank of Punjab had become ineffective and were not to be entertained for withdrawals at the Branches of the OP.  The OP has not placed on record the details of Bank Statement of the complainant to prove that he himself has been using the previous cheques and now cannot be raise such an objection in his favour.  Therefore, the Jakhal Branch of the OP was certainly acted in an arbitrary manner while entertaining the cheques of Centurion Bank of Punjab, even though they had seized to be in circulation. This act of the OP amounts to deficiency in service on its part.    

 

13]      In the affidavit of Sh.Anil Dhawan, he has explained that at the time of entertaining the cheques in question, he was vigilant enough to take identity proof of the person, who had presented the cheques for encashment.  Unfortunately, the contents of these two cheques in question, clearly indicate that they were in the name of Sh.Ashok Kumar and Sh.Ashok Sharma (Ann.A & B), whereas the only Identity Proof that has been placed on record by the OP belong to one Sh.Ashok Sharma, therefore, it is proved that two different cheques issued in the name of two different persons were entertained under the identity of a single person.  This act of the OP in ignoring the true identity of the person, seeking withdrawal of cash, which was evident on the face of the Identity Proof certainly amounts to negligence and irresponsible attitude of the persons entertaining such an identity proof.  The identity proof of Sh.Ashok Sharma, should not have been entertained while encashing the cheque issued in the name of Ashok Kumar.  Had the officials of the OP entertaining the cheques in question, had shown due vigilance, the hard earned money of the complainant, could have been easily saved from having reached the hands of unscrupulous person.

 

14]      In view of the incomplete pleadings of OP, placed on record, through an incomplete reply wherein blank spaces have been left would in no manner help the case of the OP even though it had preferred to file a supplementary affidavits dated 2.8.2011, 13.6.2013 and 30.9.2013, without bringing on record any of its official record in support of such affidavits.  Therefore, the bald averments of the OP carry no weight, in absence of any supportive evidence to that effect. The OP, therefore, has failed to address the allegation of the complainant on the aforementioned scores by not placing any cogent, believable and trustworthy evidence. Hence, the present complaint deserves to succeed against qua the OP. Accordingly, the complaint stands allowed against the OP.  The OP is directed as under:-

[i] To credit an amount of Rs.8,75,000/- in the account of the complainant along with savings bank rate interest, as applicable at the time of such withdrawal, from the date of such debit till the date of credit;

 

[ii] To pay an amount of Rs.20,000/- as compensation for deficiency in service and causing mental agony and harassment to the complainant;

 

[iii] To pay Rs.10,000/- towards the cost of litigation.

 

         This order shall be complied with by the OP within a period of 45 days from the date of its receipt, failing which it shall be liable to pay interest @18% per annum from the date of withdrawal of Rs.8,75,000/- till it is paid. The amount of compensation shall carry interest @18% p.a. from the date of this order till it is paid, apart from paying the cost of litigation. 

                Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

25.03.2015

Sd/-

 (RAJAN DEWAN)

PRESIDENT

 

 

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER

 

‘Om”

 

Consumer Complaint Case No: 202 of 2010

 

Present:       None.

 

                                                                       

 

 

                        As per the detailed order of even date recorded separately, this complaint has been allowed against Opposite Party.

 

 

                        After compliance file be consigned.

 

 

 

Announced.

25.03.2015                      President                       Member