ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) for release of the amount withheld in his current account  to the extent of Rs.2,52,133/- along with interest, to cancel the legal notice dated 30.03.2017 issued by OPs and  for other reliefs as this forum deems fit under circumstances of this complaint. 

2.     The brief facts of the complaint are that: Complainant is a businessman carrying on the business in selling the stationary items. OPs are the Nationalized Bank in which the complainant is having a current account bearing No. 1074201001882. The OPs installed a POS – Point of Sale machine during Sep-2016 in the shop of the complainant by allotting code number 903535661.  He used to operate the machine as and when the customers came and the amount used to be credited to the current account maintained by the OPs and the amount was used to be released to the complainant regularly. They have entered into an agreement in that respect. 

3.     On 30.03.2017, OPs issued notice to the complainant enclosing account statement dated 18.10.2015 to 12.02.2015 stating that there are some fraudulent transactions to the tune of Rs.16,73,665/- and withheld  a sum of Rs.2,09,910/- from his current account  inspite of he being diligent and supplied the materials by meeting all the guidelines of swiping the machines, taking charge slips,  and getting it signed by the customers.  If at all OPs have suffered any loss, they have every right to initiate criminal proceedings against him and to complaining to the cyber crime police. The act of the OPs in withholding the amount and imposing interest amounts to defeating his rights and also deficiency in service and amounts to cheating. He has been put to severe hardship, injury and untold misery which the OPs have to compensate. The act of OPs amounts to false business practice and also against public policy and hence there is deficiency in service and unfair trade practice and hence the complaint.

4.     Upon the service of notice, OPs appeared before the Forum and filed their version admitting the fact of providing POS Machine to the business establishment of the complainant.  It is contended in the version that, the complaint is frivolous, vexatious, unsustainable in law and there is commercial transaction by the complainant for earning profit and hence complainant is not a consumer under the Act and hence the complaint is not maintainable and liable to be dismissed.   Complainant has not hired any service of the OPs and there is no transaction of buying and selling between them. The complaint involves several complicated facts of accounting and calculation. It cannot be decided by summary procedure.

5.     It is submitted by OPs that the complainant made an application on 26.12.2014 to the bank as a Canara Bank member establishment. After considering the application, POS machine was supplied. At that time, the complainant was enlightened as to the terms and conditions of installation of POS and how the operation to the transaction to be made, maintenance of secrecy and allowing genuine cards to be swiped.  Further complainant was also informed not to make any alteration in the charge slip after it is signed by the card holder and he shall not receive any payment in cash or cheque from the card holder in respect of the transaction effected through the card.   He shall not prepare the charge slip in respect of any card unless the cards are physically produced by the card holder.  It should be used only for genuine transaction towards sale of goods or providing service to the card holder. He shall not disburse any money or cash to the card holder against the charge slips.  He was also informed as to how the claim the reimbursement and also shall not include charge slip to a transaction wherein merchandise sold is yet to be delivered. 

6.     It was also informed to him that bank will not be responsible for any misconduct on the part of the merchant establishment on the card holder.  The bank has a right to charge back to the merchant establishment amounts relating to charge slip with a relative amount could not be recovered readily by the issue a bank from the card holder.  He was also informed that it was his bounden duty to obtain signature on the charge slips by the card holders.  If no signature is available on the face or reverse of the card, the complainant is not supposed to accept the card and he shall not allow any piracy or violate copy right or trade mark of the software and shall indemnify the bank for the loss caused to the bank for the reasons of non-compliance or violations of the terms and conditions.

7.     It is further contended that, on verification, it was found that complainant has violated the terms and conditions and indulged in fraudulent transactions. During verification, it was found that, the terms and conditions are violated, the card transactions had taken place outside the territory authorized for the use of the card, signature of the card holder forged in the charge slip, and the details in the charge slip either incomplete or illegible and exceeded the invoice value and bill amount and in certain cases the card holder has repudiated the receipt. There were hand written charge slips and further counter feet and skimmed cards were accepted and transacted.  The DBA swing of the head office of OP found the above fraudulent transactions of the complainant to the tune of Rs.16,73,665/- using the POS machine and hence it blocked the complainant’s account as directed by the head office and after considering the above, called upon the complainant to pay Rs.12,37,376.53 excluding the interest from 27.12.2016 as per banks letter dated 30.03.2017.

8.     Complainant neither complied the demand nor sent any reply and has filed the complaint by suppressing real and true facts as a counter blast. It has rightly withheld Rs. 2,09,910/- and demanded Rs.2,26,478.47 and blocked the account. The bank has not adopted false business practice which are opposed to public policy. Complainant is not entitled to any of the reliefs claimed and only with an intention to harass them has come up with this complaint and hence prayed to dismiss the same.

9.     In order to prove the case, both the parties filed their affidavit evidence and produced documents. Arguments Heard. The following points arise for our consideration:-

1)   Whether the complainant has proved

     deficiency in service on the part of the

     Opposite Parties?

2)  Whether the complainant is entitled to

    the relief prayed for in the complaint?

10.   Our answers to the above points are:-

POINT NO.1:            In the negative.

POINT NO.2:             In the negative.

                                For the following.

REASONS

POINT No.1 and 2:-

11.   Upon perusal of the complaint, the affidavit evidence and the documents filed by the respective parties, it becomes clear that the complainant was given a POS (Point of sale) machine by OP and the complainant has entered into an agreement.  It is the specific case of the OP that a fraud has been played by the complainant much against to the terms and conditions of the use of POS and their head office authorities after inspection found the misuse of the POS and thereby blocked the amount standing in the current account of the complainant. 

12.   It is also specifically mentioned by the OPs as to how the fraud, mischief and mis-utilization of the POS has been carried out by the complainant.  The notice issued by the complainant has also been replied and the account statement is also produced.  It is also mentioned that the transaction carried out by the complainant by using the debit card do not conform to the requirement of the terms and conditions are violated, the card transactions had taken place outside the territory authorized for the use of the card, signature of the card holder forged in the charge slip and the details in the charge slip either incomplete or illegible and exceeded the invoice value and bill amount, and in certain cases, the card holder has repudiated the receipt.   There were hand written charge slips and further counter foil and skimmed cards were accepted and transacted.

13.   Upon coming to know the said deeds, OP has freezed the account of the complainant and then withheld the amount of the complainant.  When all these facts and circumstances are considered, there is no relationship of consumer and service provider between complainant and O.Ps, rather, it is a business transaction. 

14.   The allegation of fraud, mischief and violation of terms and conditions coupled with the business transaction do not attract the provisions of the Consumer Protection Act. Whereas, the same has to be decided in a civil court, wherein evidence will be taken, cross examination of the witnesses and the matter would be decided.   Since the Consumer Protection Act envisages to dispose the complaint on a summary basis, this Forum in view of the alleged fraud and mischief cannot decide this complaint. Further no deficiency in service can be attributable to the OPs since it is a business transaction of a fraudulent nature as alleged by OPs.  Hence, we answer POINT No.1 and 2 in the Negative and pass the following:-

ORDER

1. The Complaint is hereby dismissed. Parties are directed to bear their own cost.

2. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order failing which the same will be destroyed as per the Consumer Protection Act and Rules thereon.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 22^th MARCH 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Doc.No.1:Copies of Invoices

Doc.No.2: Copy of Audited balance sheet for the year 2016-17.

Doc.No.3: Copy of  Account statement of the complainant

Doc.No.4: Copy of the legal notice sent by OP.No.1.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri K.V. Prasad, Senior Manager for OP.

Copies of Documents produced on behalf of Opposite Party/s

Doc.No.1: Copy of the application for enrolment as a member of O.P.

Doc.No.2: Copy of the legal notice sent by O.P.No.1.

Doc.No.3: Copies of Bank Statements.

MEMBER                        PRESIDENT

A*