FINAL ORDER/JUDGMENT
Sudeb Mitra, President:-
The complt’s case in short is that he maintains a current A/C in the name and style of ‘M/S Patra Jewellery Works’ in the O.P. banks concerned branch at Judges Court Road at Midnapur, Paschim Medinipur. His A/C number in the O.P. bank is 06741131001422, I.F.S.C. code is ORBC0100674, M.I.C.R code 721022302 maintained in the concerned branch of the O.P.
This is the specific complaint of the complainant that on 14.12.2017 at about 12:30 P.M. via complt’s father’s mobile no 9046570757, a person introduced himself as Susanta Chakraborty to the complainant and submitted to the complainant representing him as Manager Haldia branch of I.C.I.C.I. bank, that he would arrange a C.C. loan for the complainant under the ‘Pradhan Mantri Mudra Yojna’ scheme. On obtaining the response from the complainant, said Susanta chakraborty informed the complainant that through the representative of I.C.I.C.I. Bank, Haldia branch, named Avirup Sarkar, the complt’s necessary documents for the purpose will be procured.
The complt’s asserts that on 18.12.2017 one person representing himself as Avirup Sarkar approached the complainant & showed his Bank’s identity proof as an employee of I.C.I.C.I. Bank and procured complainant’s K.Y.C. details, I.T. file copy, Trade licence, 02 copies of passport sized photographs, a signed cheque bearing no 114749 of Rs- 100/- dtd. 18.12.2017 as processing fees, a cancelled cheque bearing no 114750 of the O.P. bank’s concerned branch and informed the complainant that the Branch Manager of the I.C.I.C.I. bank would contact the complainant by next Friday to Monday. Later on 19.12.2017 at about 2.10 P.M. complainant was intimated by his father that one caller identifying himself as Susanta Chakraborty had communicated to inform that on checking, made by the caller in respect of the complt’s CIBIL, loan A/C e.t.c., everything was found all right.
The complt. contends that on 19.12.2017 at about 3.09 P.M. a message came to the complt’s mobile no 8945896963 that a sum of Rs- 1,50,000/- was debited from the complainant’s above referred current A/C from the O.P. branch of the Oriental Bank of Commerce and credited in the name of one Abhijit Manna vide complt’s cheque no 114749
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dtd. 18.12.2017 used for the complt’s current A/C as referred in the judgment, maintained in the O.P. branch of the Oriental Bank of Commerce. On receipt of such information from the O.P., the complt. had attended the O.P. branch of the concerned Bank and through C.C.T.V. footage he could observe that one unknown person had encashed the said cheque no 114749 of the complt. given for process fee purpose for securing loan for him.
It is the complt’s contention that without taking any PAN card or Aadhar card and without verifying the identity of the cheque bearer, the O.P. had debited Rs- 1,50,000/- from the complt’s current A/C in favour of that cheque bearer in gross violation of guideline of R.B.I. contained in para 3(ii) of circular DBOD.AMLBS no 68/14.01.001/2009-10 dtd. 12.01.2010. The complt. contended by filing this complt. that had the O.P. sought for production of PAN card or Aadhar card from the cheque bearer, the fraud practised upon the complt. could have been prevented, but O.P. illegally, arbitrarily deprived the complainant and inflicted the complainant a great loss.
The complainant alleged that the O.P., for this act on it’s part caused mental pain, deficiency in service to the complt. for which the complt. not only had filed F.I.R. against Avijit Manna, Avirup Sarkar and Susanta Chakraborty in the concerned local P.S. but also has filed this complaint against the O.P. and sought reliefs as reflected in the prayer portion of the instant complaint case.
The O.P. filed W.V., denied all the materials allegations as averred in the complaint and contended, inter alia, that the complaint is baseless, non maintainable and is a result of suppression of material facts in a fabricated claim of the complt.
By filing W.O., the O.P. alleged inter alia that on 19.12.2017, the complt. had personally deposited with the O.P. Rs- 1,77,300/- in cash in his A/C, as C.C.T.V camera footage kept inside the premises of the O.P. could show and as a result of such deposits, complt’s said Current Account lying with the O.P. was credited with Rs- 1,79,935.54 paisa and on the same day at a later stage, one Avijit Manna submitted a bearer cheque in his favour, signed by the complt., to withdraw Rs-1,50,000/- from the complt’s Current account, in the presence of the complt. himself and since in that cheque, the signature of Avijit Manna was duly identified by the complt., on the overleaf of that cheque in particular, so the said cheque amount was paid to said Avijit Manna from the complt’s Current Account with the O.P. branch of Oriental Bank of Commerce. The O.P. asserted by filing W.O. in this case that
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message of such encashment was sent to the complt. from the end of the O.P. Later on 21.12.2017 the complt. had lodged complaint at the Kotwali P.S. of Medinipur over the issue. The O.P. has specifically contended that the complt. was all along present inside the branch premises of the O.P. at the time of the initiation of transaction by presentation of the cheque of Rs- 1,50,000/- and completion of the concerned transaction in his account on 19.12.2017. So, question of causing deficiency of service by crediting that cheque in favour of the cheque bearer by debiting the complt’s Current Account maintained by the O.P. doesn’t arise and therefore the O.P. by filing W.V. in this complaint prayed for the dismissal of the complaint case with cost.
Having regard to the submissions of both sides, available materials on record, the following points are framed necessary for consideration to reach the decision in respect of the complaint.
POINTS FOE CONSIDERATION/ISSUES
- Is this complainant a consumer as per Sec 2 (i) (d) (ii) of the C.P. Act of 1986?
- Has this Forum/Commission Jurisdiction to entertain the instant complaint?
- Has the O.P. caused any deficiency in service towards the complt., as alleged by the complainant and is the O.P. liable in any way?
- Whether the complt. is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
Issues No 1&2:-
At first we take up both these issues for consideration since the result of the consideration of these two issues constitute the determining factor to assess as to whether the rest of the other two issues need any discussion to reach any decisive conclusion in this complaint.
In consonance with the scopes of Clause (ii) of Sec2 (1) d of the C.P. Act of 1986 (since this complaint case is governed by the C.P. Act of 1986 on it’s being filed on 22.04.2019) we find that the complt. was the consumer of the O.P. in this case as he had been maintaining his Current Account with the O.P. branch of the concerned Bank at the relevant
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point of time of the happening of the alleged occurrence of fraudulent encashment from the complt’s Current A/C kept with the O.P. and the O.P. had been providing service to the complt. as he was the A/C holder in the O.P’s branch of the Oriental Bank of Commerce at that point of time of occurrence of this case.
Besides the home address of the complainant as reflected in the complaint and the address of the place of work of the O.P. branch of the Oriental Bank of Commerce lend convincing ground to hold that this Commission/Forum has territorial jurisdiction to deal with this complaint. So, both these issues are decided and disposed of in favour of the complainant since the relationship in between the parties of this case, as discussed above, vindicates that complainant was the consumer and the O.P. was the service provider of the complainant by maintaining his (complainant’s) Current Account at the O.P. branch of the concerned bank, having jurisdiction to do so.
Both these issues no 1&2 are decided accordingly in favour of the complainant.
Issues No 3&4:-
At the stage we take up both these two issues for discussion at a time to avoid prolixity, repetition and to secure convenience and brevity.
It is the specific complaint of the complainant in this case that the O.P. branch of the concerned bank without assessing the authenticity of the cheque bearer and even without asking for PAN card and Aadhar card of the cheque bearer who presented a cheque issued upon the complainant’s concerned Current Account for encashment and violating the guidelines of the R.B.I. so contained in para 3(ii) of the circular DBOD.AML, B.S. no 68/14.01.001/2009-10 dtd. 12.01.2010 as allowed fraudulent encashment of Rs- 1,50,000/- from the complt’s Current Account, so the O.P. has committed deficiency of service towards the complt., by facilitating the causation of infliction of financial loss towards the complt. in respect of his Current Account, maintained by the O.P.
The O.P. assailed and refuted this allegations of the complainant contending categorically that the concerned cheque, presented by the cheque bearer with the O.P., was containing two signatures of the complt. on the overleaf of the said cheque issued directing for debiting Rs- 1,50,000/- from the complt’s Current Account, maintained by the O.P. and in that process the complainant had identified the signature of the cheque bearer in the cheque in
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question, belonging to the complainant, issued on his Current Account run by the O.P. It is contended further by the O.P. in specific form that the complt., all along had been present inside the premises of the O.P. branch of the Oriental Bank of Commerce, Midnapore Branch at the time of presentation of the said cheque, by the cheque bearer and completion of transaction of the said cheque resulting in debiting Rs- 1,50,000/- from the complt’s Current Account. It is appearing from the materials on record that the complt. had practically admitted to have endorsed on the overleaf of the said cheque below the signature of the cheque bearer and thereby complainant himself had facilitated the completion of the transaction arising on the presentation of the said cheque which had consequent effect of debiting Rs- 1,50,000/- from the complt’s Current Account.
No convincing material evidence could be established by the complt. to deny these claims of the O.P. specially when the complt. hasn’t ever asserted that those signatures contained on the overleaf of the complt’s concerned cheque in respect of his Current Account are not his signatures or the same were forged or manufactured in fabricated way in order to practice and perpetrate fraud upon the complt. in respect of his Current Account, maintained by the O.P.
This is also asserted by the O.P., without being challenged by the complainant in specific form that as soon as the cheque in question of the complainant was entered in the finacle by the O.P’s clerk, the complt. had received message(SMS) from the O.P. mentioning that the cheque was received for payment against his Current Account and there was a time gap of more than 20 minutes in between the receipt of the SMS and actual encashment of the said cheque from the cash counter of the O.P. branch of Oriental Bank of Commerce but nothing could be found to hold in this case that the complt. had at all availed himself of the time gap to utilize that time as a scope to give necessary instruction to the O.P. to stop encashment of that cheque from his Current Account, and thereby to thwart the ill-endeavour of the complt’s cheque bearer to defraud the complt.
Why the complainant hadn’t availed himself of that scope, remained unexplained by the complt. what prevented him from so doing remained unanswered by the complainant conspicuously.
This appears that after that particular transaction of debiting of Rs- 1,50,000/- from the complt’s particular Current Account, maintained by the O.P. on 19.12.2017 through
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cheque no 114749 dtd. 18.12.2017, two more transactions, debiting certain amount from the complt’s concerned Current Account had taken place on 19.12.2017 too. So, this can legitimately be inferred that the complt. had been aware of that fact and as to his latest cash position on that date in his said Current Account but even then the complt. had lodged F.I.R. over this issue before the Police administration of Medinipur on 21.12.2017 that is two days after the occurrence.
The contents of the F.I.R. lodged by the complt. over this issue is not lending convincing allegation to vindicate that there was infliction of deficiency of service caused towards the complt. by the O.P. The complt. also couldn’t establish by asking for production of C.C.T.V. footage of the O.P. bank premises to successfully assail the claim of the O.P. that asserted that the complt. was all along present inside the O.P. bank premises at the time of the taking place of concerned transaction in his Current Account on 19.12.2017. The complt. also hadn’t taken the help of C.C.T.V. footage of the O.P. bank premises to refute the O.P’s claim that in the presence of the complt. himself, one cheque bearer in the name of Avijit Manna had presented complt’s duly signed bearer cheque before the O.P. for encashment of the said cheque by effecting withdrawal of Rs- 1,50,000/- from the complt’s concerned Current Account maintained by the O.P.
These all practically failed to support the complt’s allegations against the O.P.
The Ld. Counsel for the complt. has referred citation in Revision petition no 2897 of 2016 dtd. 15.03.2017, pronounced by the Hon’ble N.C.D.R.C., New Delhi, against the order dtd. 01.04.2016 in Appeal no 1033 of 2015 of the Hon’ble S.C.D.R.C., Maharastra and contended, basing on the findings of the Hon’ble N.C.D.R.C. that in this case, the O.P. had to follow the R.B.I. guidelines in respect of the transaction carried out by the non A/C based customer where the amount of the transaction was equal to or exceeded Rs- 50,000/- and the O.P. should have to verify the customer’s identity and address and as the O.P. hadn’t done so, in the given circumstances of this complaint case, that resulted in causing deficiency in service by the O.P. towards the complt.
We have our fullest regards to this golden citation and sagacity of the Ld Counsel for the complt. but we find that the factual matrix of the case in the referred citation and the factual matrix of the instant complaint case are quite different from each other.
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Here in this case, unassailably the cheque bearer had produced admittedly the complt’s duly issued cheque in presence of the complt. himself inside the bank premises of the O.P. and it is unassailably forthcoming, in the absence of contrary evidence that at the time of concerned transaction in the complt’s Current Account against submission of that cheque, the complt. was present in the bank premises of the O.P. and it is also unassailably appearing that the complt. was given information through SMS by the O.P. regarding the transaction ensuing on presentation of the complt’s cheque on his Current Account but the complt. remained unperturbed and hadn’t practically taken any step to thwart the accomplishment of fraud on his A/C, at his cost.
In the premises, we feel inclined to hold that the complt. couldn’t establish that the O.P. had caused deficiency in service in this case towards the complt. over the matter the issue or the O.P. should be held responsible for the fraud practised upon the complt. by outsider.
In this backdrop, the issue no 3 is not decided in favour of the complt. and consequently the issue no 4 has no scope to be decided in favour of the complt.
Accordingly, the issues no 3&4 of this complaint case are decided against the complt. and are thus disposed of.
Hence it is…
ORDERED
That this complaint case no CC/39/2019 be and the same is dismissed on contest against the sole O.P. of this case but without cost.
Let a plain copy of this order be supplied to the complt. and the O.Ps both, forthwith, either by hand or by Regd. Post with A/D, free of cost, for information and necessary action, as per law & rules.
