STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

                        UNION TERRITORY, CHANDIGARH

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

….…Appellant/Complainant

V E R S U S

Branch Manager, H.D.F.C. Bank, Sector 35-C, Branch, Chandigarh presently shifted to SCO No.146-147-148, Sector 43-B, Chandigarh.

.…..Respondent/Opposite Party  

BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                MRS. NEENA SANDHU,                    MEMBER

Argued by:   

Sh.Manjeet Singh Dhillon, Adv. for the appellant.

Sh.Sunil Narang, Advocate for the respondent.      

MRS. NEENA SANDHU, MEMBER

                This appeal is directed against the order dated 16.11.2012, rendered by the District Consumer Disputes Redressal Forum-II UT, Chandigarh (hereinafter to be called as the District Forum only) vide which it dismissed the complaint filed by the complainant.

2.                    In brief, the facts of the case, are that the complainant is a NRI settled in U.S.A. It was stated 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.   It was further stated that the complainant visited India from 4.1.2009 to 7.2.2009 as was evident from a copy of the passport alongwith visa. The complainant received a Bank Statement dated 11.6.2009, from the Opposite Party, wherein 2 withdrawals of Rs.3.90 lacs and Rs.4.85 lacs were found made from his account on 22nd & 29th May, 2009, respectively, by one Ashok Kumar as per copy of the statement of account (Annexure C-1). It was further stated that the complainant 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 a fresh Cheque book of HDFC Bank.  It was further stated that the HDFC Bank Jakhal had sought the proof of Identity of the person producing the cheques. A driving licence (Annexure C-2) issued by the Motor Vehicle Department, Ludhiana, was 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 the Bank, except Home Branch i.e. where the account was 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 rather encashed the cheques, ignoring the fact that the cheques were from the cheque book of Centurion Bank of Punjab, which no more existed.    It was further stated that the cheques (Annexure C-3 and C-4) were 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 was required. Thus, this irregularity should have raised the suspicion, but the dealing bank at Jakhal ignored it. It was further stated 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 made 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 attached at Annexure C-5 conclusively proved that the cheques were not signed by him.  It was further stated that the complainant was defrauded of Rs.8.75 lacs due to the negligence and lack of due diligence, on the part of Bank Branch, where he deposited his money for safe keeping, thus, failing in its responsibility towards him. It was further stated that the complainant sent an e-mail from USA to the Branch Manager, Sector 35-C, Chandigarh (Annexure C-6), complaining about the illegal withdrawal and received their replies, through e-mails (Annexure C-7 and C-8 respectively). It was further stated that the Opposite Party, in its reply, put the blame on the complainant for not informing it, about the stolen or lost cheques.  It was further stated that the Opposite Party was deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

3.                    In its written reply, the Opposite Party took up the preliminary objections that the matter was already pending with the Economic Offences Wing of Chandigarh Police and was under investigation. It was stated that the complicated questions of law and fact being involved in the case, the matter could not be tried by way of summary trial by the Forum and deserved to be dismissed on this score alone. On merits, it was denied that there was any deficiency in service on the part of the Opposite Party.  

4.                    The complainant filed his rejoinder to the written statement of Opposite Party. The complainant reiterated the averments of his complaint, through his replication and prayed for the reliefs prayed in the complaint.

5.                    The Parties led evidence, in support of their case.

6.                    After hearing the complainant, in person, Counsel for the Opposite Parties and, on going through the evidence and record of the case, the District Forum, dismissed the complaint. 

7.                    Feeling aggrieved, the instant appeal, has been filed by the appellant/complainant.

8.                    We have heard the Counsel for the parties and, have gone through the evidence and record of the case, carefully.

9.                    The Counsel for the appellant/complainant submitted that he opened an account with Centurion Bank of Punjab, which later on merged with HDFC Bank. The complainant received a statement of account issued by the Bank, wherein, it was mentioned that two withdrawals dated 22.05.09 and 29.05.09 for an amount of Rs.3.90 lacs and Rs.4.85 lacs respectively had been made by one Ashok Kumar who was alien to him and he had never ever issued the said cheques to him.  He further submitted that cheque dated 22.05.09 was drawn on self, whereas, the cheque dated 29.05.2009 was in the name of Ashok Kumar. The aforesaid cheques were issued from the cheque book of Centurion Bank of Punjab, which lapsed long ago as the complainant was issued a new cheque book by the HDFC Bank.  He further submitted that HDFC Bank Jakhal encashed both the cheques amounting to Rs.8.75 lacs ignoring the statutory rules of the Bank, which prohibits honouring of 3rd Party cheques, by any other Branch of Bank, except Home Branch i.e. where the account was originally opened. Not only this, even the HDFC Bank Jakhal Branch before encashing the cheques, in question, did not make any effort to get the same verified from the Home Branch i.e. HDFC Bank, Sector 35-C, Chandigarh as to whether the signatures endorsed on the cheques were matching with the specimen signatures of the complainant or not. He further submitted that the report of Dr.Jassy Anand’s Forensic Consultancy, conclusively proved that he said cheques were never signed by the complainant and the signatures on the same were forged. He further submitted that this fact is further fortified from the report of Central Forensic Laboratory, Sector 35, Chandigarh obtained under the RTI  Act but the District Forum did not take this into consideration, on the ground, that the same could not be admitted into evidence as there is set procedure under the Evidence Act for it and therefore, the same could not be taken as piece of evidence.  He further submitted that the District Forum by ignoring all these facts wrongly dismissed the complaint as premature  because of the fact that the matter was under investigation with the Economic Offences Wind, Chandigarh Police, whereas, it is settled principle of law that civil and criminal proceedings can go simultaneously. He further submitted that in criminal cases, the police has to deal with mensrea of an accused in committing the offence of forgery and cheating the bank of the said amount, and the same was to be proved beyond reasonable doubt.  As far as the civil liability of the Bank is concerned it stands established that the complainant is a bona fide  customer of the Bank having its NRO account.  He further submitted that while dismissing the compliant, the District Forum should have taken into consideration the opinion given by the expert particularly when it was not challenged by the respondent/Opposite Party  and there was no bar to prevent the court from comparing the signatures or handwriting by using its own experience to compare the disputed writing. He further submitted that the respondent stated that the Branch Manager of the Jakhal Branch left the service and as such, the bank was liable for the act and conduct of its employees. He further submitted that it was the duty of the Home Branch before encashing the cheques sent by HDFC Bank Jakhal Branch to verify as to whether the cheques of Centurion Bank of Punjab were still in existence particularly when the new cheque book had already been issued to the complainant by the HDFC Bank.  It was also the duty of the HDFC Bank to see as to whether the new cheque book issued by it was prior to the date of encashment of the said cheques issued by the Centurion Bank of Punjab before its merger with the HDFC Bank or not but it failed to do so. Hence from every angle, the Opposite Party was deficient in rendering service and it is a clear cut case of deficiency in service, on its part. He further submitted that the order of the District Forum, being illegal, and invalid, is liable to be set aside.

10.                 On the other hand, the Counsel for the respondent/Opposite Party, submitted that since the matter was pending investigation before the Economic Offences Wing, Chandigarh Police, and, therefore, the District Forum rightly dismissed the complaint as premature. He further submitted that the allegations of fraud and forgery are involved in the present case and the appeal was, thus, liable to be dismissed on this count also. In support of his submissions, he placed reliance upon the following judgments:

i)         Oriental Insurance Co. Ltd. Vs. Munimahesh Patel, 2006(4) CivCC 203

ii)        Citimake Builders Pvt. Ltd. Vs. Samata  Sahakari Bank Ltd. passed in M.A .No.580 of 2011 in C.C. No.141 of 2009.

iii)      Nirmal Thakur Vs. State Bank of India and another, 2011(2) CLT -523.

He further submitted that the order of the District Forum being legal and valid is liable to be upheld.

11.                 The first question, to be determined, in this case, is as to whether the complaint was premature as held by the District Forum. The answer to this question is in the negative.  The mere fact that the matter was pending before the Economic Offences Wing, Chandigarh Police did not create a bar to file a complaint before the Consumer Fora against the service provider on account of deficiency in service as per the ratio of laid down in the case titled as Trans Mediterranean Airways Vs. Universal Exports & Another, IV(2011) CPJ-13 (SC). Even otherwise, as per Section 3 of the Consumer Protection Act, 1986, the provisions of the Consumer Protection Act, 1986 shall be in addition to, and not in derogation of the provisions of any other law, for the time being in force.  The District Forum, was thus wrong in dismissing the complaint on the ground that the same was premature.

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.

13.                 In view of the above discussion, it is held that the order of the District Forum, being illegal, deserves to be set aside. The complaint is liable to be remanded back, to the District Forum, for fresh decision on merits.

14.                 For the reasons recorded above, the appeal is accepted, with no order as to costs. The impugned order of the District Forum, is set aside. The complaint is remanded back to the District Forum, with a direction, to decide the same afresh, in accordance with law.

15.                 The parties are directed to appear before the District Forum, on 22.03.2013 at 10.30 a.m., sharp.

16.                 The District Forum record be sent back, immediately, alongwith a certified copy of this order, so as to reach there, well before the date fixed.        

17.                 Certified Copies of this order be sent to the parties, free of charge.

18.                 The file be consigned to Record Room, after completion.

Pronounced.                                                                                      Sd/-

04.03.2013                               [JUSTICE SHAM SUNDER[RETD.]

                                                                                 PRESIDENT         

Sd/-

                                                                             [NEENA SANDHU]

                                                                                                MEMBER