30.06.2016
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant Appeal under Section 15 of the C P Act, 1986 has been preferred by the Appellant/Complainant challenging the order dated 28/02/2014 passed by the Ld. District Forum, Burdwan in the Misc. Application No.12 of 2014 arising out of the DF Case No.189 of 2013, filed by the Applicant/OP of the M A, being the Respondent/OP in the instant appeal.
The Ld. District Forum, in the impugned order, allowed the Misc. Application challenging the maintainability of the complaint as the complaint relates to criminal offence like fraud and theft and as an FIR under Section 420 and 379 of the IPC has already been lodged against the said offence. The Ld. District Forum observed, while allowing the MA, that the Forum lacked the jurisdiction to proceed with the complaint.
The facts of the case, in a nutshell, are that the Appellant/Complainant, a holder of S B Account in Syndicate Bank, Sonepur Bazari Branch, used his ATM card in respect of his said S/B Account to withdraw money from the ATM of Syndicate Bank located at Viringi Kalibari Branch, Durgapur. The card, immediately after insertion, went inside the machine but did not come back in spite of the Appellant/Complainant’s repeated effort for getting the same back by pressing the “cancel’ button. There was no security guard at the ATM Kiosk. The Appellant/Complainant waited for some time and left thereafter for reporting the incident to Syndicate Bank, Sonepur Bazari branch where his S B Account was being maintained and came to know that a total amount of Rs.25,000/-was withdrawn in three successive instalments @ Rs.10,000/-, Rs.10,000/- and Rs.5,000/-respectively.
The Manager, Syndicate Bank, Sonepur Bazari Branch, locked the ATM card of the Appellant/Complainant. The Appellant/Complainant then visited the Viringi Kalibari Branch, Syndicate Bank.
The Manager, Syndicate Bank, Viringi Kalibari Branch, on approach and also on receipt of verbal intimation as to the details of the incident, informed the Appellant/Complainant in presence of the service Engineer that he did not find any ATM card after the machine being checked up. The Service Engineer, on request, did not show any CCTV footage and ultimately, the Applicant/Complainant, filed a written complaint to the said Bank and left.
The report of the Service Engineer, submitted subsequently, unveiling the facts of presence of broken blade and adhesive on the Key Board of the ATM, led the Appellant/Complainant to smell some foul play in the matter and the Appellant/Complainant lodged an FIR in respect of the incident with the Durgapur P S.
The Appellant/Complainant, on subsequent approach to the Manager, syndicate Bank, Viringi Kalibari Branch, came to know that the report which the ATM experts from Bangalore have given, reveals the fact that a total amount of Rs.25,000/- in three successive instalments of Rs.10,000/-, Rs.10,000/-and Rs.5,000/-was withdrawn from the S B I, Benachiti Bazar Branch after the ATM card being punched in the ATM kiosk of Syndicate Bank.
The Appellant/Complainant claimed refund of the lost money to the said Branch manager who advised him to submit his claim before the Syndicate Bank, Sonepur Bazari Branch where the subject S B Account was being maintained. The Branch manager, Syndicate bank, Sonepur Bazari Branch, however, on approach, refused to accede to the claim of refund of the lost money of the appellant/Complainant. The aggrieved Appellant/Complainant filed the complaint case before the Ld. District Forum.
The instant MA/12/2014 before the Ld. District Forum which the impugned order relates to, arises out of the said complaint case.
Heard Ld. Advocates appearing on behalf of both the parties. The Ld. Advocate appearing on behalf of the Appellant/Complainant submitted that the Complaint Case was at a stage of ex-parte hearing when the Respondents/OPs filed the instant MA challenging maintainability of the complaint on the ground that the criminal case in connection with the FIR lodged by the Appellant/Complainant with the Durgapur P S has already been initiated.
The Ld. Advocate further submitted that there was clear deficiency of service on the part of the Authorities of the Syndicate Bank. The ATM card in respect of his Savings Bank Account being maintained in the Sonepur Bazari Branch, immediately after being inserted in the ATM of Syndicate Bank, of Bhiringi Kalibari Branch, went inside the machine not to be in possession of the Appellant/Complainant further.
The ATM in question, as the Ld. Advocate contended, was not opened for recovery of the card in presence of the Appellant/Complainant. It is difficult to admit, as the Ld. Advocate contended, that the ATM card was not recovered as the ATM card was lost in the same machine and as the entire process of searching of the ATM card was carried out in absence of the Appellant/Complainant.
Moreover, as the Ld. Advocate contended, that the Respondents/OPs failed to furnish the CC TV footage for ascertaining the manner in which the withdrawn amount was transacted.
The Ld. Advocate, in view of his submission, prayed for setting aside the impugned order allowing the Appeal.
The Ld. Advocate on behalf of the Respondents/OPs, on the other hand, submitted that the Appellant/Complainant, in his letter, addressed to the Manager Viringi Kalibari Branch , Durgapur, running page 24, referred the matter as an incident of theft. Similar indications are also there in the FIR lodged with the Durgapur Police Station, running page 26 and in the letter of the Appellant/Complainant, running page 29, addressed to the Asstt. Director, Directorate of Consumer Affair and FBP, Durgapur P O.
The Ld. Advocate submitted further that on the basis of the FIR lodged with the Durgapur P S by the Appellant/Complainant, an investigation u/s 420 and 379 IPC has already been initiated. The matter, since related to theft and fraud, the Ld. District Forum, as the Ld. Advocate contended, does not have the jurisdiction to adjudicate at this stage.
Moreover, the Ld. Advocate continued, that the Respondent/OP 2, on receipt of the information about, allegedly, fraudulent withdrawal of money, took the corrective action of locking the ATM card immediately to protect the Appellant/Complainant from facing any further loss. Taking right action at right time by the Respondent/OP 2 goes contrary to the charge of deficiency in rendering services by the Respondents/OPs, as alleged in the complaint.
The Ld. Advocate, in view of his submission, prayed for the Appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record. It appears that an FIR on an act of fraudulent withdrawal of money and theft u/s 420 and 379 of IPC has been lodged by the Appellant/Complainant with the Durgapur P S and an investigation in respect of the said FIR has also been initiated.
In the above context, we may refer to the order passed by the Hon’ble National Commission reported in 11 (2015) CPJ 54 (NC) [P N Khanna Vs. Bank of India] wherein the Hon’ble National Commission, while dismissing the Complaint, observed that allegations of theft, forgery, adjudication whereof requires elaborate evidence, cannot be decided by the Consumer Fora.
In another judgment of the Hon’ble National Commission, reported in 2015(3) CPR 151 (NC)[Umesh ohri Vs. ICICI Bank Ltd.], the Hon’ble National Commission observed that the Consumer Forum was not the proper Forum to adjudicate on serious allegations of forgery, fraud and cheating.
Instant incident, since relates to theft and fraud and is under investigation, we keep our reliance on the aforesaid observation of the Hon’ble National Commission and hold that the instant complaint, in its present state, lacks maintainability for being tried in the Consumer Fora.
The case, since decided once for all against its maintainability in its present context, does not need to be elaborated on any further point raised in the arguments by both sides. The Ld. District Forum has justifiably passed the impugned order.
Hence, ordered that the Appeal stands dismissed. The impugned order passed in the Ld. District Forum is affirmed.
